Condemnation. Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the condemnation of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceeds.
Appears in 3 contracts
Samples: Mezzanine Loan Agreement (Strategic Storage Trust VI, Inc.), Mezzanine Loan Agreement (Strategic Storage Trust VI, Inc.), Mezzanine Loan Agreement (Strategic Storage Trust VI, Inc.)
Condemnation. Borrower shall promptly give Lender notice If all or any portion of the actual Mortgaged Property shall be damaged or threatened commencement taken through condemnation (which term when used in this Mortgage shall include any damage or taking by any governmental authority and any transfer by private sale in lieu thereof), either temporarily or permanently, then the entire indebtedness secured hereby shall, at the option of Lender, become immediately due and payable, without notice to Mortgagor or any proceeding for other person or entity, or at Lender*s further option, Lender may require Mortgagor to apply all compensation, awards, proceeds, or other payments from such condemnation to the condemnation restoration and repair of the Mortgaged Property of which Borrower has knowledge and shall cause Mortgage Borrower as may be necessary to deliver cure the injury to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise Mortgaged Property occasioned by such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out all compensation, awards, proceeds, and other payments or relief relating to or payable as a result of such condemnation. Lender is hereby authorized, at its option, to commence, appear in and prosecute, in its own or in Mortgagor*s name, any action or proceeding relating to any condemnation, and to settle or compromise any claim in connection therewith. All such compensation, awards, damage, claims, rights of action and proceeds and the right thereto are hereby assigned by Xxxxxxxxx to Lender. After deducting from said condemnation proceeds all of its expenses incurred in the collection and administration of such sums, including attorneys* fees, Lender may apply the net proceeds or any part thereof, at its option, (a) to the payment of the Award interest at the rate indebtedness hereby secured, whether or rates provided not due and in whatever order Lender elects, together with any prepayment premiums, fees, or charges herein or in the Note. If Note provided, (b) to the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration repair and/or restoration of the Property Mortgaged Property, or (c) for any other purposes or objects for which Lender is entitled to advance funds under this Mortgage, all without affecting the lien of this Mortgage; and otherwise comply with the applicable provisions any balance of the Mortgage Loan Agreementsuch monies than remaining shall be paid to Mortgagor. Borrower shall cause Mortgage Borrower Xxxxxxxxx agrees to pay all costs execute such further assignment of Restoration whether or not such costs are covered by the Net Insurance Proceedsany compensation, awards, damages, claims, rights of action and proceeds as Lender may require.
Appears in 3 contracts
Samples: Loan Agreement, Loan Agreement, Loan Agreement
Condemnation. Borrower shall promptly give Lender notice of the actual If all or threatened commencement of any proceeding for the condemnation part of the Property shall be damaged or taken through condemnation (which term when used in this Deed to Secure Debt shall include any damage or taking by any governmental or private authority, and any transfer by private sale in lieu thereof), either temporarily or permanently, the entire indebtedness secured hereby shall at the option of which Borrower has knowledge the Grantee become immediately due and payable. The Grantee shall cause Mortgage Borrower be entitled to deliver all compensation, awards, and other payments or relief for any condemnation and hereby is authorized, at its option, to Lender copies commence, appear in and prosecute, in its own or the Grantor's name, any action or proceeding relating to any condemnation, and to settle or compromise any claim in connection therewith. All such compensation, awards, damages, claims, rights of action and proceeds and the right thereto are hereby assigned by the Grantor to the Grantee, which, after deducting therefrom all its expenses, including attorneys' fees, may release any moneys so received by it without affecting the lien of this Deed to Secure Debt or may apply the same in such manner as the Grantee shall determine to the reduction of the indebtedness secured hereby, and any balance of such moneys then remaining shall be paid to the Grantor. The Grantor agrees to execute such further assignments of any compensations, awards, damages, claims, rights of action and all papers served in connection with such proceedingsproceeds as the Grantee may require. Provided no Event of Default has occurred and is continuing, The Grantor promptly shall notify the Grantee in the event of a the institution of any condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out eminent domain proceeding or in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect threat thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but The Grantee shall be entitled to receive out retain, at the expense of the Award interest at Grantor, its own legal counsel in connection with any such proceedings or threatened proceedings. Grantee shall be under no obligation to the rate Grantor or rates provided herein to any other person to determine the sufficiency or in the Note. If the Property legality of any condemnation award and may accept any such award without question or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceedsfurther inquiry.
Appears in 3 contracts
Samples: And Security Agreement (Roberts Realty Investors Inc), Roberts Realty Investors Inc, Roberts Realty Investors Inc
Condemnation. Borrower Borrowers shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the condemnation Condemnation of the any Property of which Borrower has knowledge or any part thereof and shall cause Mortgage Borrower Borrowers to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event Lender may participate in any such proceedings with respect to any Condemnation in which Borrowers’ reasonable estimate (based on any statement of Default has occurred and is continuing, value submitted to the condemning authority or any other reasonable evidence in the event of a condemnation where the amount Lender’s reasonable judgment) of the taking does not exceed Net Proceeds or the Insurance costs of completing the Restoration are equal to or greater than the Restoration Threshold, and the applicable Borrower may (shall, or may shall cause the applicable Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments reasonably requested by it to permit such participation. Borrower Borrowers shall, or shall cause Mortgage Borrowers to, at its their expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall shall, to the extent required hereunder, consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including including, but not limited to to, any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower Borrowers shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessDebt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the any Property or any portion thereof is taken by a condemning authority, Borrower Borrowers shall, or shall cause Mortgage Borrower to Borrowers to, promptly commence and diligently prosecute the Restoration of the applicable Property and otherwise comply with the applicable provisions of Section 6.4 of the Mortgage Loan Agreement. Borrower shall cause , provided, that if (A) Mortgage Borrower Lender is obligated to pay all costs make Net Proceeds available to Mortgage Borrowers for purposes of Restoration in accordance with Section 6.4 of the Mortgage Loan Agreement, (B) Mortgage Lender has received such Net Proceeds, and (C) Mortgage Lender has not made such Net Proceeds available to Mortgage Borrowers, then Mortgage Borrowers shall not be obligated to repair and restore such Property unless and until such Net Proceeds are made available to Mortgage Borrowers. If such Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.
Appears in 3 contracts
Samples: Third Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC), Third Mezzanine Loan Agreement (Morgans Hotel Group Co.), First Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC)
Condemnation. In the event that all or any portion of the Mortgaged Property shall be damaged or taken through condemnation (which term shall include any damage or taking by any governmental authority, quasi-governmental authority, any party having the power of condemnation, or any transfer by private sale in lieu thereof), or any such condemnation shall be threatened, Borrower shall promptly give prompt written notice to the Lender. The Lender notice acknowledges that First Mortgage Borrower’s rights to any condemnation award is subject to the terms of the actual or threatened commencement of any proceeding for First Mortgage Loan Documents. Subject to the condemnation rights of the Property of which First Mortgage Lender contained in the First Mortgage Loan Documents, Borrower has knowledge may not and shall cause not permit First Mortgage Borrower to deliver settle or compromise any claim, action or proceeding relating to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a damage or condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with without the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participateLender; provided, at Borrower’s costfurther, in any litigation and settlement discussions in respect thereof, and that Borrower shall from time to time deliver to Lender all instruments requested by it to may permit such participation. Borrower shall, at its expense, cause First Mortgage Borrower to diligently prosecute settle, adjust and compromise any such proceedingsclaim, and shall consult with Lenderaction or proceeding which is of an amount less than $1,000,000 so long as no Default or Event of Default has occurred. Any proceeds, its attorneys and expertsaward or damages from such damage or condemnation which are not used to reconstruct or repair the Mortgaged Property, and cooperate with them in or applied to the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation balance of the exercise of such taking)loan evidenced by the First Mortgage Loan Documents, Borrower shall continue be paid to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received Lender and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge payment of the Indebtedness. Lender shall not be limited In the event that First Mortgage Borrower is permitted pursuant to the interest paid on the Award by the condemning authority but shall be entitled to receive out terms of the Award interest at First Mortgage Loan Documents to reconstruct, restore or repair the rate or rates provided herein or in the Note. If the Mortgaged Property or following a condemnation of any portion thereof is taken by a condemning authorityof the Mortgaged Property, Borrower shall cause First Mortgage Borrower to promptly commence and diligently prosecute repair and restore the Restoration of Mortgaged Property in the Property manner and otherwise comply with within the applicable provisions time periods required by the First Mortgage Loan Documents, the Leases and any other agreements affecting the Mortgaged Property. In the event that First Mortgage Borrower is permitted pursuant to the terms of the Mortgage Loan Agreement. to elect not to reconstruct, restore or repair the Mortgaged Property following a condemnation of any portion of the Mortgaged Property, Borrower shall cause not permit First Mortgage Borrower to pay all costs elect not to reconstruct, restore or repair the Mortgaged Property without the prior written consent of Restoration whether or not such costs are covered by the Net Insurance ProceedsLender.
Appears in 3 contracts
Samples: Loan Agreement (Thomas Properties Group Inc), Loan Agreement (Thomas Properties Group Inc), Loan Agreement (Thomas Properties Group Inc)
Condemnation. Borrower shall promptly give Lender notice Immediately upon obtaining knowledge of the actual or threatened commencement institution of any proceeding proceedings for the condemnation of the Leased Property or any portion thereof, or any other similar governmental or quasi-governmental proceedings arising out of which Borrower has knowledge and injury or damage to the Leased Property or any portion thereof, Tenant shall cause Mortgage Borrower to deliver to Lender copies notify Landlord of any and all papers served in connection with the pendency of such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower Tenant shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, proceedings and shall consult with LenderLandlord, its attorneys and experts, experts and cooperate with them as reasonably requested in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public All proceeds of condemnation awards or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made proceeds of sale in lieu of condemnation with respect to the Leased Property and all judgments, decrees and awards for injury or damage to the Leased Property shall be paid to Landlord and applied as provided in anticipation Paragraph 4 above. Landlord is hereby authorized, in the name of Tenant, to execute and deliver valid acquittances for, and to appeal from, any such judgment, decree or award concerning condemnation of any of the Leased Property. Landlord shall not be, in any event or circumstances, liable or responsible for failure to collect, or to exercise diligence in the collection of, any such proceeds, judgments, decrees or awards. Notwithstanding the foregoing provisions of such takingthis subparagraph 9.(s), Borrower shall continue following any condemnation or sale in lieu of condemnation involving the Leased Property, if condemnation or sale proceeds totaling not more than $2,000,000 are to pay the Indebtedness at the time and be recovered as a result thereof, or if in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award connection therewith Tenant shall have been actually received executed a Voluntary Minimum Pledge Commitment and applied by Lenderdelivered any additional Collateral required to satisfy such Voluntary Minimum Pledge Commitment, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but Tenant shall be entitled to receive out directly and hold such condemnation or sale proceeds, so long as no Event of Default shall have occurred and be continuing and so long as Tenant applies such proceeds towards the restoration, replacement and repair of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration remainder of the Leased Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered as required by the Net Insurance Proceedssubparagraph 4.(b).
Appears in 3 contracts
Samples: Lease Agreement (3com Corp), Lease Agreement (3com Corp), Lease Agreement (3com Corp)
Condemnation. In the event that all or any portion of the Collateral Property shall be damaged or taken through condemnation (which term shall include any damage or taking by any governmental authority, quasi-governmental authority, any party having the power of condemnation, or any transfer by private sale in lieu thereof), or any such condemnation shall be threatened, solely to the extent permitted under the Mortgage Loan Documents, Borrower shall promptly give Lender prompt written notice of the actual or threatened commencement of any proceeding for the condemnation of the Property of which to Lender. Borrower has knowledge shall not, and shall cause not permit Owner to, settle or compromise any claim, action or proceeding relating to such damage or condemnation without the prior written consent of Lender; provided that Borrower or Owner may make proof of loss and settle or compromise any such claim, action or proceeding solely to the extent permitted under the Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided Loan Documents so long as no Default or Event of Default has occurred and is continuing. Any proceeds, in award or damages from such damage or condemnation which are not (a) applied to the event of a condemnation where the amount balance of the taking does not exceed loan evidenced by the Insurance Thresholdapplicable Mortgage Loan Documents, Borrower may or (or may cause Mortgage Borrower tob) settle used for the restoration and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount repair of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, Collateral Property pursuant to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions terms of the Mortgage Loan Agreement. Borrower Documents, such shall cause Mortgage Borrower be paid to pay all costs Lender and applied to the payment of Restoration the Obligations whether or not then due less reasonable out-of-pocket expenses incurred in connection with the settlement or compromise of such costs are covered claim, action or proceeding. Notwithstanding anything contained in the Loan Documents to the contrary, Lender hereby agrees that Borrower and Owner may use all condemnation proceeds, awards and damages to restore and repair the Collateral Property, provided that such use is permitted under the terms of the Mortgage Loan Documents subject, however, to disbursement, oversight, inspection and monitoring requirements and controls required by the Net Insurance ProceedsMortgage Lender so long as the Mortgage Loan is outstanding and, thereafter, subject to disbursement, oversight, inspection and monitoring requirements and controls customary for construction loans for similar type properties in similar geographic areas.
Appears in 3 contracts
Samples: Mezzanine Loan Agreement (Preferred Apartment Communities Inc), Mezzanine Loan Agreement (Preferred Apartment Communities Inc), Mezzanine Loan Agreement (Preferred Apartment Communities Inc)
Condemnation. Borrower shall promptly give notify Lender notice of any action or proceeding relating to any condemnation or other taking, whether direct or indirect, of the actual Property, or threatened commencement of any proceeding for the condemnation of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect part thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently appear in and prosecute any such proceedingsaction or proceeding unless otherwise directed by Lender in writing. Borrower authorizes Lender, at Lender's option, as attorney-in-fact for Borrower, to commence, appear in and prosecute, in Lender's or Borrower's name, any action or proceeding relating to any condemnation or other taking of the Property, whether direct or indirect, and shall consult to settle or compromise any claim in connection with Lender, its attorneys and experts, and cooperate with them in the carrying on such condemnation or defense other taking. The proceeds of any such proceedings. Notwithstanding award, payment or claim for damages, direct or consequential, in connection with any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made other taking, whether direct or indirect, of the Property, or part thereof, or for conveyances in lieu of condemnation, are hereby assigned to and shall be paid to Lender subject, if this Instrument is on a leasehold, to the rights of lessor under the ground lease. Borrower authorizes Lender to apply such awards, payments, proceeds or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lenderdamages, after the deduction of Lender's expenses incurred in the collection of collectionsuch amounts, at Lender's option, to the reduction restoration or discharge repair of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration payment of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration sums secured by this Instrument, whether or not then due, in the order of application set forth in paragraph 3 hereof, with the balance, if any, to Borrower. Unless Borrower and Lender otherwise agree in writing, any application of proceeds to principal shall not extend or postpone the due date of the monthly installments referred to in paragraphs 1 and 2 hereof or change the amount of such costs are covered by the Net Insurance Proceedsinstallments. Borrower agrees to execute such further evidence of assignment of any awards, proceeds, damages or claims arising in connection with such condemnation or taking as Lender may require.
Appears in 3 contracts
Samples: Rents and Security Agreement (Maxus Realty Trust Inc), Rents and Security Agreement (Maxus Realty Trust Inc), Rents and Security Agreement (World Wrestling Federation Entertainment Inc)
Condemnation. Borrower shall promptly give Lender notice If all or part of the actual Collateral shall be damaged or taken through condemnation (which term when used in this Mortgage shall include any damage or taking by any governmental authority, and any transfer by private sale in lieu thereof), either temporarily or permanently, other than a taking of a part of the Collateral which does not in Lender's opinion materially adversely affect access to or use of the Collateral, the value of the Collateral or the operation of either Facility, the entire Loan Obligations secured hereby shall at the option of the Lender become immediately due and payable (without any prepayment penalty). Borrower, immediately upon obtaining knowledge of any institution, or any proposed, contemplated or threatened commencement institution of any proceeding action or proceedings for the taking through condemnation of the Property of which Collateral or any part thereof, will notify Lender, and Lender is hereby authorized, at its option, to commence, appear in and prosecute, through counsel selected by Lender, in its own or in Borrower's name, any action or proceeding relating to any condemnation Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of may compromise or settle any and all papers served in connection with such proceedings. Provided claim for compensation so long as no Event of Default has occurred exists and any compromise or settlement results in a payment to Lender not less than the entire Loan Obligations. All such compensations, awards, damages, claims, rights of action and proceeds and the right thereto are hereby assigned by Borrower to Lender, and Lender is continuingauthorized, in the event of a condemnation where at its option, to collect and receive all such compensation, awards or damages and to give proper receipts and acquittance therefor without any obligation to question the amount of any such compensation, awards or damages. After deducting from said condemnation proceeds all of its reasonable expenses incurred in the taking does not exceed collection and administration of such sums, including reasonable attorney's fees, Lender may release any moneys so received by it for the Insurance Thresholdrepair or restoration of the Collateral taken, Borrower may (or may cause Mortgage Borrower to) settle and compromise apply the same in such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In manner as the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have determine to reduce the opportunity to participateLoan Obligations in such order as Lender may elect, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not then due, and without affecting this Mortgage as security for any remaining Loan Obligations, and any balance of such costs are covered by moneys shall be paid to the Net Insurance ProceedsBorrower.
Appears in 2 contracts
Samples: Security Agreement and Fixture Filing (Balanced Care Corp), Security Agreement and Fixture Filing (Balanced Care Corp)
Condemnation. Borrower shall promptly give Lender notice of In the actual event that all or threatened commencement of any proceeding for the condemnation portion of the Property shall be damaged or taken through condemnation (which term shall include any damage or taking by any governmental authority, quasi-governmental authority, any party having the power of which condemnation, or any transfer by private sale in lieu thereof), or any such condemnation shall be threatened, Mezzanine Borrower has knowledge shall give prompt written notice to Mezzanine Lender. Mezzanine Lender acknowledges that Mortgage Borrower’s rights to any condemnation award is subject to the terms of the Loan Agreement (Mortgage). Notwithstanding the foregoing, Mezzanine Borrower may not and shall cause not permit Mortgage Borrower to deliver settle or compromise any claim, action or proceeding relating to Lender copies such damage or condemnation without the prior written consent of Mezzanine Lender, which shall not be unreasonably withheld, delayed or denied; provided, further, that Mortgage Borrower may settle, adjust and compromise any and all papers served in connection with such proceedings. Provided claim, action or proceeding which does not exceed forty percent (40%) of the Allocated Loan Amount of the affected Individual Property so long as no Monetary Default or Event of Default has occurred and is continuing, in . Any Excess Proceeds shall be paid to Mezzanine Lender and applied to the event of a condemnation where the amount payment of the taking does Obligations (Third Mezzanine) whether or not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely mannerthen due pursuant to Section 2.3.1(b). In the event that Mortgage Borrower is permitted pursuant to the terms of the Loan Agreement (Mortgage) to reconstruct, restore or repair the Property following a condemnation where the amount of any portion of the taking exceeds the Insurance Threshold or if an Event of Default then existsProperty, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Mezzanine Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute repair and restore the Restoration Property in the manner and within the time periods required by the Loan Agreement (Mortgage), the Leases and any other agreements affecting the Property. In the event that Mortgage Borrower is permitted pursuant to the terms of the Loan Agreement (Mortgage) to elect not to reconstruct, restore or repair the Property and otherwise comply with the applicable provisions following a condemnation of any portion of the Mortgage Loan Agreement. Property, Mezzanine Borrower shall cause not permit Mortgage Borrower to pay all costs elect not to reconstruct, restore or repair the Property without the prior written consent of Restoration whether or not such costs are covered by the Net Insurance ProceedsMezzanine Lender.
Appears in 2 contracts
Samples: Mezzanine Loan and Security Agreement (Toys R Us Inc), Mezzanine Loan and Security Agreement (Toys R Us Inc)
Condemnation. Borrower Borrowers shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the condemnation Condemnation of the any Property of which Borrower has knowledge or any part thereof and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower Borrowers shall, at its their expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall shall, to the extent required hereunder, consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including including, but not limited to to, any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower Borrowers shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to Debt in accordance with the interest paid on the Award by the condemning authority but shall be entitled to receive out provisions of the Award interest at the rate or rates provided herein or in the NoteSection 2.4.2 hereof. If the any Property or any portion thereof is taken by a condemning authority, Borrower Borrowers shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the applicable Property and otherwise comply with the applicable provisions of Section 6.4 of the First Mortgage Loan Agreement. Borrower shall cause , provided, that if (A) First Mortgage Borrower Lender is obligated to pay all costs make Net Proceeds available to Borrowers for purposes of Restoration in accordance with Section 6.4 of the First Mortgage Loan Agreement, (B) First Mortgage Lender has received such Net Proceeds, and (C) First Mortgage Lender has not made such Net Proceeds available to Borrowers, then Borrowers shall not be obligated to repair and restore such Property unless and until such Net Proceeds are made available to Borrowers. If such Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt (and all components thereof).
Appears in 2 contracts
Samples: Second Mortgage Loan Agreement, Second Mortgage Loan Agreement (Bref Hr, LLC)
Condemnation. Borrower shall promptly give Lender Agent prompt notice of the any actual or threatened commencement (in writing) Condemnation by any Governmental Authority of all or any proceeding for the condemnation part of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies Agent a copy of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, continuing and in the event of a condemnation Condemnation where the amount value of the taking does not exceed the Insurance ThresholdRestoration Threshold as reasonably determined by Agent, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out Condemnation; provided that the same is effected in a commercially reasonable and timely manner. In the event of a condemnation Condemnation where the amount value of the taking exceeds the Insurance Threshold Restoration Threshold, in Agent’s reasonable determination, or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation Condemnation only with the prior written consent of Lender Agent (which consent shall not be unreasonably withheld or delayed) and Lender Agent shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, thereof and Borrower shall from time to time deliver to Lender Agent all instruments reasonably requested by it Agent to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with LenderAgent, its attorneys and experts, and reasonably cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking)Condemnation, Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement Agreement. Agent and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender Lenders shall not be limited to the interest paid on the Award by the condemning authority any Governmental Authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authorityany Governmental Authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of Section 5.3. If the Mortgage Loan Agreement. Borrower Property is sold, through foreclosure or otherwise, prior to the receipt by Agent of the Award, Agent and Lenders, as applicable, shall cause Mortgage Borrower to pay all costs of Restoration have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.
Appears in 2 contracts
Samples: Loan Agreement (Black Creek Diversified Property Fund Inc.), Loan Agreement (Black Creek Diversified Property Fund Inc.)
Condemnation. In the event that all or any portion of the Collateral Property shall be damaged or taken through condemnation (which term shall include any damage or taking by any governmental authority, quasi-governmental authority, any party having the power of condemnation, or any transfer by private sale in lieu thereof), or any such condemnation shall be threatened, solely to the extent permitted under the Mortgage Loan Documents, Borrower shall promptly give Lender prompt written notice to Lender. Borrower shall not settle or compromise any claim, action or proceeding relating to such damage or condemnation without the prior written consent of Lender; provided that Borrower may make proof of loss and settle or compromise any such claim, action or proceeding solely to the actual extent permitted under the Mortgage Loan Documents so long as no Default or threatened commencement of any proceeding for the condemnation of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing. Any proceeds, in award or damages from such damage or condemnation which are not (a) applied to the event of a condemnation where the amount balance of the taking does not exceed loan evidenced by the Insurance Thresholdapplicable Mortgage Loan Documents, Borrower may or (or may cause Mortgage Borrower tob) settle used for the restoration and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount repair of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, Collateral Property pursuant to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions terms of the Mortgage Loan Agreement. Borrower Documents, such shall cause Mortgage Borrower be paid to pay all costs Lender and applied to the payment of Restoration the Obligations whether or not then due less reasonable out-of-pocket expenses incurred in connection with the settlement or compromise of such costs are covered claim, action or proceeding. Notwithstanding anything contained in the Loan Documents to the contrary, Lender hereby agrees that Borrower may use all condemnation proceeds, awards and damages to restore and repair the Collateral Property, provided that such use is permitted under the terms of the Mortgage Loan Documents subject, however, to disbursement, oversight, inspection and monitoring requirements and controls required by the Net Insurance ProceedsMortgage Lender so long as the Mortgage Loan is outstanding and, thereafter, subject to disbursement, oversight, inspection and monitoring requirements and controls customary for construction loans for similar type properties in similar geographic areas.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Preferred Apartment Communities Inc), Mezzanine Loan Agreement (Preferred Apartment Communities Inc)
Condemnation. Borrower shall promptly give Lender notice If all or any part of the actual Premises shall be damaged or threatened commencement of taken through condemnation (which term when used in this Mortgage shall include any proceeding for damage or taking by any governmental authority and any transfer by private sale in lieu thereof), either temporarily or permanently, which taking in Mortgagee’s sole discretion will result in a material impairment to the condemnation security granted to Mortgagee, then the entire indebtedness secured hereby shall, at the option of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuingMortgagee (provided, in the event of a condemnation where the amount of however, Mortgagee agrees that so long as the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount affect any of the taking exceeds improvements of the Insurance Threshold or if an Event of Default then existsPremises, Borrower may (Mortgagee’s determination shall be in its reasonable discretion), become immediately due and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent payable. The Mortgagee shall not be unreasonably withheld or delayed) and Lender shall have the opportunity entitled to participateall compensation, at Borrower’s cost, in any litigation and settlement discussions in respect thereofawards, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shallother payments or relief thereof and is hereby authorized, at its expenseoption, cause Mortgage Borrower to diligently prosecute commence, appear in and prosecute, in its own or the Mortgagor’s name, any such proceedingsaction or proceeding relating to any condemnation, and shall consult with Lenderto settle or compromise any claim in connection therewith. All such compensation, its attorneys awards, damages, claims, rights of action and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement proceeds and the Indebtedness right thereto are hereby assigned by the Mortgagor to the Mortgagee, who after deducting therefrom all its expenses, including attorneys’ fees, shall not be reduced until release any Award monies so received by it without affecting this Mortgage and may apply the same in such manner as the Mortgagee shall have been actually received and applied by Lender, after the deduction of expenses of collectiondetermine, to the reduction or discharge of the Indebtedness. Lender sum secured hereby and any balance of such monies then remaining shall not be limited paid to the interest paid on Mortgagor. The Mortgagor agrees to execute such further assignment of any compensation, awards, damages, claims, rights of action and proceeds as the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance ProceedsMortgagee may require.
Appears in 2 contracts
Samples: Mortgage and Security Agreement (Generation Income Properties, Inc.), Fee and Leasehold Mortgage and Security Agreement (Generation Income Properties, Inc.)
Condemnation. Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the condemnation in respect of the Property of which Borrower has knowledge Condemnation, and shall cause the applicable Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower Lender may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, participate in any litigation and settlement discussions in respect thereofsuch proceedings, and Borrower shall (or shall cause Mortgage Borrowers to) from time to time deliver to Lender all instruments requested by it Lender to permit such participation. Borrower shallshall (or shall cause Mortgage Borrowers to), at its their expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including including, but not limited to to, any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay perform the Indebtedness Obligations at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness other Loan Documents and the Outstanding Principal Balance shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessObligations. Lender shall not be limited to the interest paid on the Award by the condemning authority applicable Governmental Authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the any Property or any portion thereof is taken by a condemning authorityGovernmental Authority, Borrower shall cause the Mortgage Borrower that owns such Property promptly to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of Section 6.4 of the Mortgage Loan Agreement. Borrower If any Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award applicable to such Property, Lender shall cause Mortgage Borrower to pay all costs of Restoration have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Cole Credit Property Trust Inc), Mezzanine Loan Agreement (Cole Credit Property Trust III, Inc.)
Condemnation. Borrower shall promptly give Lender notice Any and all awards heretofore and hereafter made to Mortgagor and all subsequent owners of the actual Mortgaged Property by any governmental or threatened commencement other lawful authorities for the taking by eminent domain of the whole or any part of the Mortgaged Property or any easement therein, including any awards for any changes of grade of streets, are hereby assigned to Mortgagee, who is hereby authorized to collect and receive the proceeds of any proceeding such awards from such authorities, to give proper receipts and acquittances therefor and to apply the same toward the payment of the amount owing on account of this Mortgage and said indebtedness, notwithstanding the fact that the amount owing thereon may not then be due and payable provided, however, if such award is less than $100,000 it shall be paid over to the Mortgagor for the condemnation repair if any damages resulting from such taking; and Mortgagor hereby covenants and agrees, upon request, to make, execute and deliver any and all assignments and other instruments sufficient for the purpose of assigning the Property of which Borrower has knowledge aforesaid awards to Mortgagee free, clear and shall cause Mortgage Borrower to deliver to Lender copies discharged of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense encumbrances of any such proceedingskind or nature whatsoever. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower Mortgagor shall continue to pay the Indebtedness at the time and in the manner provided for its payment in make all payments required by the Note and in this Agreement and the Indebtedness shall not be reduced until any Award such award shall have been actually received by Mortgagee and applied any reduction in said indebtedness resulting from the application by LenderMortgagee of such award shall be deemed to take effect only on the date of such receipt. Notwithstanding the foregoing, after the deduction of expenses of collection, to the reduction if any one or discharge more of the Indebtedness. Lender shall not be limited to portions of the interest paid on the Award by the condemning authority but Mortgaged Property described in subparagraphs (a), (b) and (c) below shall be entitled to receive out of damaged or taken through condemnation, either temporarily or permanently, then the Award interest entire balance due under the Note and any other Loan Documents shall, at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authorityoption of Mortgagee, Borrower shall cause Mortgage Borrower to promptly commence become immediately due and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceeds.payable:
Appears in 2 contracts
Samples: Mortgage and Security Agreement (Vicon Industries Inc /Ny/), Mortgage and Security Agreement (Vicon Industries Inc /Ny/)
Condemnation. Borrower If the Collateral, or any part thereof, shall promptly give Lender notice be condemned for any reason, including without limitation fire or earthquake damage, or otherwise taken for public or quasi-public use under the power of the actual eminent domain, or threatened commencement of any proceeding be transferred in lieu thereof, all damages or other amounts awarded for the condemnation of taking of, or injury to, the Property of which Borrower has knowledge and Collateral shall cause Mortgage Borrower to deliver be paid to Lender copies who shall have the right, in its sole and absolute discretion, to apply the amounts so received against (a) the costs and expenses of any and all papers served Lender, including attorneys' fees incurred in connection with collection of such proceedings. Provided amounts, and (b) the balance against the amounts due hereunder; provided, however, that if (i) no Event of Default has shall have occurred and is continuingbe continuing hereunder, (ii) Borrower provides evidence satisfactory to Lender of its ability to pay all amounts becoming due hereunder during the pendency of any restoration or repairs to or replacement of the Collateral, and (iii) Lender determines, in its sole discretion, that the event proceeds of a condemnation where such award are sufficient to restore, repair, replace and rebuild the amount Collateral as nearly as possible to its value, condition and character immediately prior to such taking (or, if the proceeds of such award are insufficient for such purpose, if Borrower provides additional sums to Lender's satisfaction so that the taking does not exceed aggregate of such sums and the Insurance Thresholdproceeds of such award will be sufficient for such purpose), Borrower may (or may cause Mortgage Borrower to) settle and compromise the proceeds of such condemnation. Any such settlement and compromise must award, together with additional sums provided by Borrower, shall be carried out placed in a commercially reasonable separate account controlled by Lender and timely mannerused by Borrower to restore, repair, replace and rebuild the Collateral as nearly as possible to its value, condition and character immediately prior to such taking. In the event of All work to be performed in connection therewith shall be pursuant to a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then existswritten contract therefor, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with which contract shall be subject to the prior written consent approval of Lender, and Borrower's draws from such account to pay for such work shall be subject to Lender's reasonable requirements and documentation. To the extent that any funds remain after the Collateral has been so restored and repaired, the same shall be applied against the amounts due hereunder in such order as Lender (which consent shall not be unreasonably withheld or delayed) and may elect. To enforce its rights hereunder, Lender shall have the opportunity be entitled to participate, at Borrower’s cost, participate in and control any litigation condemnation proceedings and settlement discussions in respect thereof, to be represented therein by counsel of their own choice and Borrower shall will deliver, or cause to be delivered to Lender such instruments as may be requested by them from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with In the event Lender, its attorneys and experts, and cooperate with them in the carrying on or defense as a result of any such proceedings. Notwithstanding any taking by any public judgment, decree or quasi-public authority through condemnation award, believes that the payment or otherwise (including but not limited to any transfer made in lieu of or in anticipation performance of the exercise of such taking)Loan or the Bonds is impaired, Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge Lender may declare all of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence amounts due hereunder immediately due and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceedspayable.
Appears in 2 contracts
Samples: Purchase and Loan Agreement, Purchase and Loan Agreement
Condemnation. Borrower shall (or shall cause Mortgage Borrower to) promptly give Lender notice of the actual or threatened commencement of any proceeding for the condemnation Condemnation of the any Individual Property (or portion thereof) of which Borrower has knowledge and shall (or shall cause Mortgage Borrower to to) deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower Lender may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, participate in any litigation and settlement discussions in respect thereofsuch proceedings, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, shall cause Mortgage Borrower to to, at Borrower’s or Mortgage Borrower’s expense, diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness Debt shall not be reduced until any Award Net Liquidation Proceeds After Debt Service shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessDebt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award Net Liquidation Proceeds After Debt Service interest at the rate or rates provided herein or in the Note. If the any Individual Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of Section 7.4 of the Mortgage Loan Agreement. Borrower shall (or shall cause Mortgage Borrower to to) pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceeds. Subject to the rights of Mortgage Lender under the Mortgage Loan Documents and Mezzanine A Lender under the Mezzanine A Loan Documents, if any Individual Property (or any portion thereof) is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Net Liquidation Proceeds After Debt Service, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt. The provisions of this Section 7.3 are subject to Section 7.4(d) of the Mortgage Loan Agreement.
Appears in 2 contracts
Samples: Mezzanine B Loan Agreement (Northstar Realty Finance Corp.), Mezzanine B Loan Agreement (NorthStar Healthcare Income, Inc.)
Condemnation. Borrower shall (or shall cause Mortgage Borrower to) promptly give Lender notice of the actual or threatened commencement of any proceeding for the condemnation Condemnation of the any Individual Property (or portion thereof) of which Borrower has knowledge and shall (or shall cause Mortgage Borrower to to) deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower Lender may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, participate in any litigation and settlement discussions in respect thereofsuch proceedings, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, shall cause Mortgage Borrower to to, at Borrower’s or Mortgage Borrower’s expense, diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness Debt shall not be reduced until any Award Net Liquidation Proceeds After Debt Service shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessDebt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award Net Liquidation Proceeds After Debt Service interest at the rate or rates provided herein or in the Note. If the any Individual Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of Section 7.4 of the Mortgage Loan Agreement. Borrower shall (or shall cause Mortgage Borrower to to) pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceeds. Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, if any Individual Property (or any portion thereof) is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Net Liquidation Proceeds After Debt Service, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt. The provisions of this Section 7.3 are subject to section 7.4(d) of the Mortgage Loan Agreement.
Appears in 2 contracts
Samples: Mezzanine a Loan Agreement (NorthStar Healthcare Income, Inc.), Mezzanine a Loan Agreement (Northstar Realty Finance Corp.)
Condemnation. Borrower shall promptly give Lender prompt notice of the any actual or threatened commencement Condemnation by any Governmental Authority of all or any proceeding for the condemnation part of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies a copy of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) to settle and compromise the condemnation Condemnation only with the prior written the consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof: Lender may participate in any such proceedings, and Borrower shall from time to time deliver to Lender all instruments requested by it Lender to permit such participation. Borrower shallshall cause Mortgage Borrower to, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Lender is hereby irrevocably appointed as Borrower’s attorney-in-fact, coupled with an interest, with exclusive power to collect, receive and retain any Award and to make any compromise or settlement in connection with any such Condemnation. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking)Condemnation, Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness Debt shall not be reduced until any Award shall Net Liquidation Proceeds After Debt Service have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessDebt. Lender shall not be limited to the interest paid on the Award by the condemning authority any Governmental Authority but shall be entitled to receive out of the Award interest Net Liquidation Proceeds After Debt Service at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authorityany Governmental Authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of Section 5.3 of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceeds.
Appears in 2 contracts
Samples: Mezzanine a Loan Agreement (Telx Group, Inc.), Mezzanine B Loan Agreement (Telx Group, Inc.)
Condemnation. Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the condemnation Condemnation of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower Lender may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, participate in any litigation and settlement discussions in respect thereofsuch proceedings, and Borrower shall from time to time deliver to Lender all instruments reasonably requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including including, but not limited to to, any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessDebt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Section 6.4, provided, that if (A) Lender is obligated to make Net Proceeds available to Borrower for purposes of restoration in accordance with Section 6.4, (B) Lender has received such Net Proceeds and (C) Lender has not made such Net Proceeds available to Borrower, then Borrower shall cause Mortgage Borrower not be obligated to pay all costs repair and restore the Property. If the Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of Restoration the Award, Lender shall have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.
Appears in 2 contracts
Samples: Loan Agreement (FelCor Lodging Trust Inc), Loan Agreement (FelCor Lodging Trust Inc)
Condemnation. Borrower shall promptly give Lender prompt notice of the any actual or threatened commencement Condemnation by any Governmental Authority of all or any proceeding for the condemnation part of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies a copy of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation Condemnation where the amount of the taking does not exceed the Insurance Restoration Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out Condemnation; provided that the same is effected in a commercially reasonable and timely manner. In the event of a condemnation Condemnation where the amount of the taking exceeds the Insurance Restoration Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation Condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, thereof and Borrower shall from time to time deliver to Lender all instruments requested by it Lender to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking)Condemnation, Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessAgreement. Lender shall not be limited to the interest paid on the Award by the condemning authority any Governmental Authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authorityany Governmental Authority, Borrower shall cause Mortgage Borrower shall, subject to Legal Requirements of any Governmental Authorities, promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of Section 5.3. If the Mortgage Loan Agreement. Borrower Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall cause Mortgage Borrower to pay all costs of Restoration have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the outstanding Debt.
Appears in 2 contracts
Samples: Loan Agreement (Behringer Harvard Reit I Inc), Loan Agreement (Behringer Harvard Reit I Inc)
Condemnation. Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the condemnation Condemnation of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation Condemnation where the amount of the taking does not exceed the Insurance Restoration Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnationCondemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation Condemnation where the amount of the taking exceeds the Insurance Restoration Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation Condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessDebt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan AgreementSection 5.4. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceeds. If the Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.
Appears in 2 contracts
Samples: Loan Agreement (Medalist Diversified REIT, Inc.), Loan Agreement (Medalist Diversified REIT, Inc.)
Condemnation. Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the condemnation Condemnation of the any Individual Property (or any portion thereof) of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower Lender may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, participate in any litigation and settlement discussions in respect thereofsuch proceedings, and Borrower Bxxxxxxx shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shallshall (or shall cause a Tenant to, as applicable), at its expenseexpense or the expense of the Tenant, cause Mortgage Borrower to as applicable, diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessDebt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the any Individual Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property subject to and otherwise comply in accordance with the applicable provisions of the Mortgage Loan AgreementSection 7.4. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceeds. If any Individual Property (or portion thereof) is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt. Notwithstanding the foregoing or anything to the contrary contained herein, if, in connection with any Casualty or Condemnation, a prepayment of the Debt (in whole or in part) is required under REMIC Requirements, (a) the applicable Net Proceeds shall be applied to the Debt in accordance with Section 7.4(c) hereof and (b) to the extent that the amount of the applicable Net Proceeds actually applied to the Debt in connection therewith is insufficient under REMIC Requirements, Borrower shall, within five (5) days of demand by Lender, prepay the principal amount of the Debt in accordance with the applicable terms and conditions hereof in an amount equal to such insufficiency plus the amount of any then applicable Interest Shortfall (such prepayment, together with any related Interest Shortfall payment, collectively, the “REMIC Payment”). Lender may require Borrower to deliver a REMIC Opinion in connection with each of the foregoing.
Appears in 2 contracts
Samples: Loan Agreement (Industrial Logistics Properties Trust), Loan Agreement (Industrial Logistics Properties Trust)
Condemnation. Borrower Borrowers shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the condemnation Condemnation of the any Property of which Borrower has knowledge or any part thereof and shall cause Mortgage Borrower Borrowers to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event Lender may participate in any such proceedings with respect to any Condemnation in which Borrowers’ reasonable estimate (based on any statement of Default has occurred and is continuing, value submitted to the condemning authority or any other reasonable evidence in the event of a condemnation where the amount Lender’s reasonable judgment) of the taking does not exceed Net Proceeds or the Insurance costs of completing the Restoration are equal to or greater than the Restoration Threshold, and the applicable Borrower may (shall, or may shall cause the applicable Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments reasonably requested by it to permit such participation. Borrower Borrowers shall, or shall cause Mortgage Borrowers to, at its their expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall shall, to the extent required hereunder, consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including including, but not limited to to, any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower Borrowers shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessDebt in accordance with the provisions of Section 2.4.3(c) hereof and, with respect to the determination of the Exit Fee payable in connection therewith, Section 2.8 hereof. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the any Property or any portion thereof is taken by a condemning authority, Borrower Borrowers shall, or shall cause Mortgage Borrower to Borrowers to, promptly commence and diligently prosecute the Restoration of the applicable Property and otherwise comply with the applicable provisions of Section 6.4 of the Mortgage Loan Agreement. Borrower shall cause , provided, that if (A) Mortgage Borrower Lender is obligated to pay all costs make Net Proceeds available to Mortgage Borrowers for purposes of Restoration in accordance with Section 6.4 of the Mortgage Loan Agreement, (B) Mortgage Lender has received such Net Proceeds, and (C) Mortgage Lender has not made such Net Proceeds available to Mortgage Borrowers, then Mortgage Borrowers shall not be obligated to repair and restore such Property unless and until such Net Proceeds are made available to Mortgage Borrowers. If such Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt (and all components thereof, including, without limitation, the Exit Fee).
Appears in 2 contracts
Samples: Second Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC), Third Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC)
Condemnation. Borrower shall (or shall cause Mortgage Borrower to) promptly give Lender Agent notice of the actual or threatened commencement of any proceeding for the condemnation Condemnation of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender Agent copies of any and all papers served in connection with such proceedings. Provided no Event Subject to Section 5.4 of Default has occurred and is continuingthis Agreement, Agent may participate in any such proceedings to the event of a condemnation where the amount extent such Condemnation affects any portion of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out Property valued in a commercially reasonable and timely manner. In the event of a condemnation where the amount excess of the taking exceeds the Insurance Restoration Threshold or if an Event of Default then exists(any such Condemnation, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereofa “Material Condemnation”), and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shallshall cause Mortgage Borrower to, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, with respect to any Material Condemnation, and in the case of such proceedings, shall consult with LenderAgent, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including including, but not limited to to, any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness Debt shall not be reduced until any Award shall Net Liquidation Proceeds After Debt Service have been actually received and applied by LenderLenders, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessDebt. Lender The Lenders shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award Net Liquidation Proceeds After Debt Service interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property pursuant to Section 5.4 of the Mortgage Loan Agreement and otherwise comply with the applicable provisions of Section 5.4 of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceeds.
Appears in 2 contracts
Samples: First Mezzanine Loan Agreement (Clipper Realty Inc.), First Mezzanine Loan Agreement (Clipper Realty Inc.)
Condemnation. Borrower shall (or shall cause Mortgage Borrower to) promptly give Lender notice of the actual or threatened commencement of any proceeding for the condemnation Condemnation of the any Individual Property (or portion thereof) of which Borrower has knowledge and shall (or shall cause Mortgage Borrower to to) deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower Lender may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, participate in any litigation and settlement discussions in respect thereofsuch proceedings, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, shall cause Mortgage Borrower to to, at Borrower’s or Mortgage Borrower’s expense, diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness Debt shall not be reduced until any Award Net Liquidation Proceeds After Debt Service shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessDebt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award Net Liquidation Proceeds After Debt Service interest at the rate or rates provided herein or in the Note. If the any Individual Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of Section 7.4 of the Mortgage Loan Agreement. Borrower shall (or shall cause Mortgage Borrower to to) pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceeds. Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, Mezzanine A Lender under the Mezzanine A Loan Documents and Mezzanine B Lender under the Mezzanine B Loan Documents, if any Individual Property (or any portion thereof) is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Net Liquidation Proceeds After Debt Service, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt. The provisions of this Section 7.3 are subject to Section 7.4(d) of the Mortgage Loan Agreement.
Appears in 2 contracts
Samples: Mezzanine C Loan Agreement (Northstar Realty Finance Corp.), Mezzanine C Loan Agreement (NorthStar Healthcare Income, Inc.)
Condemnation. Borrower (a) Mortgagor shall promptly give Lender Mortgagee written notice of the actual or threatened commencement of any condemnation or eminent domain proceeding for the condemnation of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender Mortgagee copies of any and all papers served in connection with such proceedings. Provided no Event Mortgagee is hereby irrevocably appointed as Mortgagor's attorney-in-fact, coupled with an interest, with exclusive power to collect, receive and retain any award or payment for said condemnation or eminent domain and to make any compromise or settlement in connection with such proceeding, subject to the provisions of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedingsthis Mortgage. Notwithstanding any taking by any public or quasi-public authority through condemnation eminent domain or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower Mortgagor shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and Note, in this Agreement Mortgage and the Indebtedness other Loan Documents and the Debt shall not be reduced until any Award award or payment therefor shall have been actually received after expenses of collection and applied by Lender, after the deduction of expenses of collection, Mortgagee to the reduction or discharge of the IndebtednessDebt. Lender Mortgagee shall not be limited to the interest paid on the Award award by the condemning authority but shall be entitled to receive out of the Award award interest at the rate or rates provided herein or and in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower Mortgagor shall cause Mortgage Borrower the award or payment made in any condemnation or eminent domain proceeding, which is payable to promptly commence and diligently prosecute Mortgagor, to be paid directly to Mortgagee. Mortgagee may apply any such award or payment to the Restoration reduction or discharge of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration Debt whether or not then due and payable (such costs are covered application to be without any prepayment consideration, except that if an Event of Default, or an event with notice and/or the passage of time, or both, would constitute an Event of Default, has occurred, then such application shall be subject to the prepayment consideration computed in accordance with the Note). If the Mortgaged Property is sold, through foreclosure or otherwise, prior to the receipt by Mortgagee of such award or payment, Mortgagee shall have the Net Insurance Proceedsright, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive said award or payment, or a portion thereof sufficient to pay the Debt.
Appears in 2 contracts
Samples: Ramco Gershenson Properties Trust, Ramco Gershenson Properties Trust
Condemnation. Borrower shall promptly give Lender 13.1 If, prior to the Closing Date, Contributor or SCOLP receives or obtains notice that any governmental authority having jurisdiction intends to commence or has commenced proceedings for the taking of any portion of any Project by the exercise of any power of condemnation or eminent domain, or notice of any such taking is recorded among the actual public records of the state or threatened commencement the county where the Project is located, then this Agreement shall not be terminated, nor shall the Closing be delayed, and the parties shall close the transaction as if no such notice had been received, obtained or recorded or proceedings commenced. In such event SCOLP, acting reasonably, shall control the claim, litigation, and settlement a process and, at the direction of any proceeding for SCOLP, Contributor will cooperate and cause the Property Owner to cooperate with SCOLP in good faith to maximize the recovery of condemnation proceeds. Without limitation, if requested by SCOLP, Contributor and the Property Owner shall assign to SCOLP the right to settle and receive the condemnation proceeds and will execute such proofs of the Property claims and other forms and instruments (including, if requested, a limited power of which Borrower has knowledge and shall cause Mortgage Borrower attorney in favor of SCOLP) as SCOLP reasonably deems to deliver to Lender copies of any and all papers served be necessary or appropriate for this purpose. Any proceeds or awards made in connection with such proceedings. Provided no Event taking shall be the sole property of Default has occurred SCOLP and is continuingthe applicable Property Owner, and not Contributor or the Holding Companies, less any out-of-pocket costs and expenses incurred by Contributor or the Holding Companies with respect to restoration resulting from such condemnation or out-of-pocket costs and expenses incurred in connection with the event collection of a any such condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely mannerproceeds. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise Lender does not release the condemnation only proceeds, SCOLP may pay off the applicable loan at Closing in accordance with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Omnibus Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceeds.
Appears in 2 contracts
Samples: Contribution Agreement (Sun Communities Inc), Contribution Agreement (Sun Communities Inc)
Condemnation. Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the condemnation Condemnation of the any Individual Property of which Borrower has knowledge received notice and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower Lender may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, participate in any litigation and settlement discussions in respect thereofsuch proceedings, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessDebt, provided, however, after payment in full of the Debt, any excess proceeds received by Lender shall be distributed in accordance with the provisions set forth in the Cash Management Agreement. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the any Individual Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the such Individual Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration Section 8.4, whether or not such costs are covered Lender makes any Net Proceeds available pursuant to Section 8.4. If an Individual Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Net Insurance ProceedsAward, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.
Appears in 2 contracts
Samples: Loan Agreement (Corporate Property Associates 16 Global Inc), Loan Agreement (Corporate Property Associates 15 Inc)
Condemnation. Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the condemnation Condemnation of the Property of which Borrower has knowledge promptly after becoming aware thereof, and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, Lender may participate in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise any such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or proceedings if an Event of Default then exists, Borrower may (and may cause exists or permit Mortgage Borrower to) settle and compromise if the condemnation only with amount of the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have Award exceeds the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereofThreshold Amount, and Borrower shall from time to time deliver (or cause to be delivered) to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute (or cause the diligent prosecution of) any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessDebt (provided that Awards in respect of any temporary taking of the Property, unless an Event of Default shall have occurred and be continuing, shall be applied as if they constituted Rent). Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If any portion of the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute (or shall cause the prompt commencement and diligent prosecution of) the Restoration of the Property pursuant to Section 6.4 hereof and otherwise comply with the applicable provisions of Section 6.4 hereof. If the Mortgage Loan Agreement. Borrower Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall cause Mortgage Borrower to pay all costs of Restoration have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt. Notwithstanding the foregoing provisions of this Section 6.3, and Section 6.4 hereof, if the Loan or any portion thereof is included in a REMIC Trust and, immediately following a release of any portion of the Lien of the Security Instrument in connection with a Condemnation (but taking into account any proposed Restoration on the remaining portion of the Property), the Loan to Value Ratio is greater than 125% (such costs are covered value to be determined, in Lender’s sole discretion, by any commercially reasonable method permitted to a REMIC Trust), the principal balance of the Loan must be paid down in an amount sufficient to satisfy the REMIC Requirements, unless the Lender receives an opinion of counsel that if such amount is not paid, the Securitization will not fail to maintain its status as a REMIC Trust as a result of the related release of such portion of the Lien of the Security Instrument. In connection with the foregoing, the Net Insurance ProceedsProceeds shall not be available for Restoration and shall be used to pay down the principal balance of the Loan, without Yield Maintenance Premium or other penalty or perjury, to the extent set forth above.
Appears in 2 contracts
Samples: Loan Agreement (Moody National REIT II, Inc.), Loan Agreement (Moody National REIT II, Inc.)
Condemnation. Borrower shall promptly give Lender notice If, prior to the Closing Date, eminent domain proceedings are commenced against all or any substantial part of the actual or threatened commencement Subject Property, Seller shall immediately give notice to Purchaser of any proceeding for such fact and, at Purchaser’s option (to be exercised within fifteen (15) days after Seller’s notice), this Agreement shall terminate with respect to the condemnation of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely mannerSubject Property. In the event of any such termination, the Exxxxxx Money shall be returned to Purchaser and thereafter neither party will have further obligations under this Agreement (other than the Surviving Indemnity Obligations, which obligations shall survive any such termination), except that Purchaser shall, at the request of Seller, execute any document reasonably requested by Seller to evidence such termination including, without limitation, a condemnation where quit claim deed. If Purchaser fails to elect to terminate this Agreement in the amount manner provided in this Section 12, then there shall be no reduction in the Purchase Price, and Seller shall assign to Purchaser at the Closing Date all of the taking exceeds the Insurance Threshold Seller’s right, title and interest in and to any award made or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise to be made in the condemnation only proceedings. Prior to the Closing Date, Seller shall not designate counsel, appear in, or otherwise act with respect to the condemnation proceedings without Purchaser’s prior written consent of Lender (consent, which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity ; provided, however, that if any action is necessary with respect to participatesuch proceeding to avoid any forfeiture or material prejudice, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but Seller shall be entitled to receive out take such action as and to the extent necessary without obtaining Purchaser’s prior written consent. For purposes of this Section, the words “substantial part” means that the portion of the Award interest Subject Property to be so taken gives rise to the ability of the Tenant(s) leasing at least fifty percent (50%) of the rate or rates provided herein or rentable square feet in the Note. If Subject Property (in the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower aggregate) to promptly commence terminate such Tenants’ Lease(s) pursuant to the terms and diligently prosecute the Restoration conditions of the Property such Lease(s) and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance ProceedsTenant(s) actually terminate such Lease(s).
Appears in 2 contracts
Samples: Office Lease Agreement (Columbia Equity Trust, Inc.), Purchase Agreement (Columbia Equity Trust, Inc.)
Condemnation. Borrower shall promptly give Lender prompt notice of the any actual or (if known to Borrower) threatened commencement Condemnation by any Governmental Authority of all or any proceeding for the condemnation part of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies a copy of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower Lender may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, participate in any litigation and settlement discussions in respect thereofsuch proceedings, and Borrower shall from time to time deliver or cause to be delivered to Lender all instruments requested by it Lender to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute or cause to be prosecuted any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking)Condemnation, Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until Agreement. Lender acknowledges that Mortgage Borrower’s Rights to any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, are subject to the reduction or discharge terms of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the NoteMortgage Loan Documents. If the Property or any portion thereof is taken by a condemning authorityany Governmental Authority, provided that, if Mortgage Borrower is required to restore the Property under the Mortgage Loan Documents, and if Mortgage Lender makes the Net Proceeds available to Mortgage Borrower in accordance with the provisions of the Mortgage Loan Documents, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of Section 5.3 of the Building Loan Agreement. If the Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt, subject to Mortgage Lender’s and First Mezzanine Lender’s rights with respect thereto under the Mortgage Loan Documents and the First Mezzanine Loan Documents, respectively. The provisions of Section 5.2.1 and Section 5.2.2 hereof are subject to the terms and conditions of the Condominium Documents relating to casualty and condemnation and if there is any inconsistency between the terms and provisions of the Mortgage Loan AgreementCondominium Documents and the provisions hereof, the Condominium Documents shall control. Borrower Lender shall cause Mortgage Borrower have no obligation to pay all costs of Restoration whether make any Advances after a Condemnation or not such costs are covered by a Casualty unless and until the Net Insurance ProceedsProperty is restored as required hereunder.
Appears in 2 contracts
Samples: Second Mezzanine Loan Agreement, Second Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Condemnation. Borrower shall promptly give Lender notice The risk of the actual or threatened commencement of any proceeding loss for the condemnation of Property shall remain with the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely mannerSeller until Closing. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent eminent domain proceedings shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking commenced by any public or quasi-public authority through condemnation having jurisdiction against all or otherwise (including but not limited to any transfer made in lieu of or in anticipation part of the exercise Property (“Condemnation”), Seller shall promptly notify Purchaser in writing of such takingCondemnation (the “Condemnation Notice”). In the event that Purchaser determines, Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until Purchaser’s sole but reasonable discretion, that any Award such Condemnation shall have been actually received and applied a material adverse impact on the Purchaser’s Project, Purchaser may, at its option, by Lender, giving written notice to Seller within ten (10) days after the deduction of expenses of collection, to the reduction or discharge receipt of the IndebtednessCondemnation Notice, terminate this Agreement. Lender shall not be limited to the interest paid on the Award by the condemning authority but In such event, Purchaser shall be entitled to receive out the return of the Award interest at Deposit, and, thereafter, the rate parties shall have no further rights or rates provided herein obligations hereunder except for obligations which expressly survive the termination of this Agreement. In the event Purchaser does not elect to (or in is not entitled to elect to) terminate this Agreement, notwithstanding such Condemnation, the Noteparties shall proceed to Closing pursuant to this Agreement, and Seller shall transfer and/or assign to Purchaser any and all monies and claims received by and/or accrued to Seller on account of such Condemnation. If In the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower event Purchaser elects to promptly commence and diligently prosecute contest the Restoration Condemnation and/or the amount of the Property and otherwise comply with the applicable provisions Condemnation award, Purchaser shall so notify Seller promptly following receipt of the Mortgage Loan Agreement. Borrower Condemnation Notice, and thereafter, Purchaser, at its sole expense, shall cause Mortgage Borrower be entitled to pay all costs direct the Condemnation litigation; provided, however, Purchaser shall have no right to compromise or settle any Condemnation case without the prior written consent of Restoration whether or Seller which consent shall not such costs are covered by the Net Insurance Proceedsbe unreasonably withheld.
Appears in 2 contracts
Samples: Agreement of Sale, Agreement of Sale
Condemnation. (a) Borrower shall notify Lender promptly give Lender notice of the actual commencement or threatened commencement threat of any proceeding for Taking of all or any portion of a Project. Lender is hereby irrevocably appointed as Borrower’s attorney-in-fact, coupled with an interest, with exclusive power to collect, receive and retain the condemnation of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies proceeds of any and all papers served such Taking in accordance with the terms of this Agreement, Borrower shall not make any compromise or settlement in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with proceedings without the prior written consent of Lender (Lender, which consent shall not be unreasonably withheld or delayeddelayed (except during the existence of an Event of Default, in which event Borrower’s approval shall not be required), provided, however, that Borrower may, without Lender’s consent, compromise or settle any such proceeding with respect to Condemnation Proceeds in an amount less than five percent (5%) of the Allocated Loan Amount of the affected Project. Borrower shall execute and deliver to Lender any and all instruments reasonably required in connection with any such proceeding promptly after request therefor by Lender. All Condemnation Proceeds are hereby assigned to and shall be paid to Lender. If any Condemnation shall result in the actual constructive loss of fifteen percent (15%) or more of the fair market value of any Project, Lender shall have the opportunity to participate, at Borrower’s costoption, in Lender’s sole discretion, to apply such Condemnation Proceeds (less any litigation cost to Lender of recovering and settlement discussions paying out such proceeds, including, without limitation, reasonable attorneys’ fees and disbursements and costs allocable to inspecting any repair, restoration or rebuilding work and the plans and specifications therefor), toward the payment of the Debt or to allow such proceeds to be used for the Work; provided, however, with respect to any other Condemnation, Lender shall make such proceeds available to Borrower for restoration in respect thereofaccordance with Section 3.04(b). In the event Lender elects or is required to make Condemnation Proceeds available to be used toward the restoration or rebuilding of the affected Project to a usable whole, such Condemnation Proceeds shall be disbursed in the manner and subject to the conditions set forth in Section 3.04(b) hereof. Any excess proceeds remaining after completion of such restoration or rebuilding shall be applied to the repayment of the Debt. If the Condemnation Proceeds are used to reduce the Debt, they shall be applied in accordance with the provisions of the Note with no prepayment fee or charge of any kind. In addition, in the event that Lender shall elect to apply such Condemnation Proceeds to reduce the Debt, the Allocated Loan Amount of the affected Project shall be reduced on a dollar for dollar basis with the amount of proceeds so applied, Borrower shall from time have the right to time cause a Release of such Project and in connection with such Release, the Release Amount shall be the Allocated Loan Amount of such Project (as such Allocated Loan Amount may have been increased pursuant to the definition thereof), as so reduced. Borrower shall promptly execute and deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in Lender for the carrying on or defense purpose of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation confirming the assignment of the exercise of such taking), Borrower shall continue Condemnation Proceeds to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceeds.
Appears in 2 contracts
Samples: Loan Agreement (Mack Cali Realty L P), Loan Agreement (Mack Cali Realty Corp)
Condemnation. Borrower shall promptly give Lender notice If all or any part of the actual Mortgaged Property shall be damaged or threatened commencement taken through condemnation (which term when used in this Mortgage shall include any damage or taking by any governmental or private authority, and any transfer by private sale in lieu thereof), either temporarily or permanently, the entire indebtedness secured hereby shall at the option of the Lender become immediately due and payable. The Lender shall be entitled to all compensation, awards, and other payments or relief for any condemnation and hereby is authorized, at its option, to commence, appear in and prosecute, in its own or the Mortgagor’s name, any action or proceeding relating to any condemnation, and to settle or compromise any claim in connection therewith. All such compensation, awards, damages, claims, rights of action and proceeds and the right thereto are hereby assigned by the Mortgagor to the Lender, which, after deducting therefrom all its expenses, including attorneys’ fees, may release any moneys so received by it without affecting the lien of this Mortgage or may apply the same in such manner as the Lender shall determine to the reduction of the indebtedness secured hereby, and any balance of such moneys then remaining shall be paid to the Mortgagor. The Mortgagor agrees to execute such further assignments of any proceeding for compensations, awards, damages, claims, rights of action and proceeds as the condemnation of Lender may require. The Mortgagor promptly shall notify the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a the institution of any condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out eminent domain proceeding or in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of any threat thereof. The Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out retain, at the expense of the Award interest at Mortgagor, its own legal counsel in connection with any such proceedings or threatened proceedings. Lender shall be under no obligation to the rate Borrower or rates provided herein to any other person to determine the sufficiency or in the Note. If the Property legality of any condemnation award and may accept any such award without question or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceedsfurther inquiry.
Appears in 2 contracts
Samples: Loan Agreement (Westwater Resources, Inc.), And Leases and Security Agreement (Westwater Resources, Inc.)
Condemnation. Borrower shall promptly give Lender prompt notice of the any actual or threatened commencement Condemnation by any Governmental Authority of all or any proceeding for the condemnation part of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies a copy of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation Condemnation where the amount of the taking does not exceed the Insurance Restoration Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out Condemnation; provided that the same is effected in a commercially reasonable and timely manner. In the event of a condemnation Condemnation where the amount of the taking exceeds the Insurance Restoration Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation Condemnation only with the prior written the consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, thereof and Borrower shall from time to time deliver to Lender all instruments requested by it Lender to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Lender is hereby irrevocably appointed as Borrower’s attorney-in-fact, coupled with an interest, with exclusive power to collect, receive and retain any Award and to make any compromise or settlement in connection with any such Condemnation that Lender is otherwise permitted to settle pursuant to the terms of this Agreement. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking)Condemnation, Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessAgreement. Lender shall not be limited to the interest paid on the Award by the condemning authority any Governmental Authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authorityany Governmental Authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of Section 5.3. If the Mortgage Loan Agreement. Borrower Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall cause Mortgage Borrower to pay all costs of Restoration have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.
Appears in 2 contracts
Samples: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.), Loan Agreement (Trizec Properties Inc)
Condemnation. Borrower shall promptly give Lender prompt notice of the any actual or threatened commencement Condemnation by any Governmental Authority of all or any proceeding for the condemnation part of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies a copy of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation Condemnation where the amount of the taking does not exceed the Insurance Restoration Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out Condemnation; provided that the same is effected in a commercially reasonable and timely manner. In the event of a condemnation Condemnation where the amount of the taking exceeds the Insurance Restoration Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation Condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld withheld, delayed or delayedconditioned) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, thereof and Borrower shall from time to time deliver to Lender all instruments requested by it Lender to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking)Condemnation, Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessAgreement. Lender shall not be limited to the interest paid on the Award by the condemning authority any Governmental Authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authorityany Governmental Authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of Section 5.3. If the Mortgage Loan Agreement. Borrower Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall cause Mortgage Borrower to pay all costs of Restoration have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.
Appears in 2 contracts
Samples: Loan Agreement (Thomas Properties Group Inc), Loan Agreement (Thomas Properties Group Inc)
Condemnation. Borrower Grantor shall promptly give Lender notice of the actual or threatened commencement notify Holder immediately of any threatened or pending proceeding for condemnation affecting the Property or arising out of damage to the Property, and Grantor shall, at Grantor’s expense, diligently prosecute any such proceedings. Holder shall have the right (but not the obligation) to participate in any such proceeding and to be represented by counsel of its own choice. Holder shall be entitled to receive all sums which may be awarded or become payable to Grantor for the condemnation of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of Property, or any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect part thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any for public or quasi-public authority through condemnation use, or otherwise by virtue of private sale in lieu thereof, and any sums which may be awarded or become payable to Grantor for injury or damage to the Property. Grantor shall, promptly upon request of Holder, execute such additional assignments and other documents as may be necessary from time to time to permit such participation and to enable Holder to collect and receipt for any such sums. All such sums are hereby assigned to Holder, and shall, after deduction therefrom of all reasonable expenses actually incurred by Holder, including attorneys’ fees, at Holder’s option be (1) released to Grantor, or (2) applied (upon compliance with such terms and conditions as may be required by Holder) to repair or restoration of the Property so affected, or (3) applied to the payment of the Secured Indebtedness in such order and manner as Holder, in its sole discretion, may elect, whether or not due. In any event the unpaid portion of the Secured Indebtedness shall remain in full force and effect and the payment thereof shall not be excused. Holder shall not be, under any circumstances, liable or responsible for failure to collect or to exercise diligence in the collection of any such sum or for failure to see to the proper application of any amount paid over to Grantor. Holder is hereby authorized, in the name of Grantor, to execute and deliver valid acquittances for, and to appeal from, any such award, judgment or decree. All costs and expenses (including but not limited to attorneys’ fees) incurred by Holder in connection with any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but condemnation shall be entitled a demand obligation owing by Grantor (which Grantor hereby promises to receive out pay) to Holder pursuant to this Deed of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance ProceedsTrust.
Appears in 2 contracts
Condemnation. Borrower shall promptly give Lender notice Immediately upon obtaining knowledge of the actual or threatened commencement of any proceeding proceedings for the condemnation of the Property or any portion thereof, or any other similar governmental or quasi-governmental proceedings arising out of which Borrower has knowledge and shall cause Mortgage Borrower injury or damage to deliver the Property or any portion thereof, each party will promptly notify the other (provided, however, BNPPLC will have no liability for its failure to Lender copies provide such notice) of any and all papers served in connection with the pendency of such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount Upon its obtaining knowledge of the taking does not exceed the Insurance Thresholdcommencement of any such proceedings, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shallChoicePoint must, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, proceedings and shall must consult with LenderBNPPLC, its attorneys and experts, experts and cooperate with them as reasonably requested in the carrying on or defense of any such proceedings. BNPPLC is hereby authorized, in its own name or in the name of ChoicePoint or in the name of both, at any time when an Event of Default has occurred and is continuing, but not otherwise without ChoicePoint’s prior consent, to execute and deliver valid acquittances for, and to appeal from, any such judgment, decree or award concerning condemnation of any of the Property. BNPPLC will not in any event or circumstances be liable or responsible for failure to collect, or to exercise diligence in the collection of, any such proceeds, judgments, decrees or awards. Notwithstanding the foregoing provisions of this subparagraph, in the case of any taking by any public of less than all or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation substantially all of the exercise of such taking)Property, Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall (1) if condemnation proceeds totaling not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge more than ten percent (10%) of the Indebtedness. Lender shall not Lease Balance are to be limited recovered, ChoicePoint may directly receive and hold such proceeds so long as no Event of Default has occurred and is continuing and so long as ChoicePoint applies such proceeds as required herein, and (2) so long as no Event of Default has occurred and is continuing and ChoicePoint is proceeding with reasonably diligence to try to settle, adjust or compromise the interest paid on claim for condemnation proceeds, ChoicePoint may lead the Award by negotiations with the condemning authority but shall be entitled to receive out and BNPPLC will not unreasonably withhold or delay its approval of the Award interest at the rate any such settlement, adjustment or rates provided herein or in the Note. If the Property or any portion thereof is taken compromise proposed by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance ProceedsChoicePoint.
Appears in 2 contracts
Samples: Lease Agreement (Choicepoint Inc), Lease Agreement (Choicepoint Inc)
Condemnation. Borrower shall promptly give Lender notice of the actual or threatened commencement of any condemnation or eminent domain proceeding for the condemnation of affecting the Property of which Borrower has knowledge (a "CONDEMNATION") and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedingsCondemnation. Provided Following the occurrence of a Condemnation, Borrower, regardless of whether an Award is available, shall promptly proceed to restore, repair, replace or rebuild the Property in accordance with Legal Requirements to the extent practicable to be of at least equal value and of substantially the same character (and to have the same utility) as prior to such Condemnation. If a Condemnation occurs where the award or payment in respect thereof (an "AWARD") does not exceed $500,000 or which results in the taking of 5% or less of the Property, provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (make any compromise, adjustment or may cause Mortgage Borrower to) settle and compromise settlement in connection with such condemnation. Any Condemnation without the prior consent of Lender; provided such settlement and compromise must be adjustment is carried out in a commercially reasonable competent and timely manner, and Borrower is hereby authorized to collect and receipt for the Award. In the event of a condemnation Condemnation where the amount Award is in excess of $500,000 or which results in the taking of more than 5% of the taking exceeds the Insurance Threshold or if Property, Lender is hereby irrevocably appointed as Borrower's attorney-in-fact, coupled with an interest, with exclusive power to collect, receive and retain any Award and, so long as no Event of Default then existsis continuing, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written Borrower's consent of Lender (which consent shall not be unreasonably withheld or delayed) and to make any compromise, adjustment or settlement in connection with such Condemnation. Borrower shall cause any Award that is payable to Borrower to be paid directly to Lender. Lender shall have hold such Award in the opportunity to participate, at Borrower’s cost, Casualty/Condemnation Subaccount and disburse such Award in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participationaccordance with the terms hereof. Borrower shall, at its expense, cause Mortgage Borrower authorizes Lender to diligently prosecute any apply such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by LenderAward, after the deduction of Lender's expenses incurred in the collection of collectionsuch amounts, at Lender's option, to the reduction restoration or discharge repair of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration payment of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration sums secured by this Instrument, whether or not then due, in the order determined by Lender, with the balance, if any, to Borrower. Unless Borrower and Lender otherwise agree in writing, any application of proceeds to principal shall not extend or postpone the due date of the monthly installments due hereunder or under any of the Loan Documents or change the amount of such costs are covered by the Net Insurance Proceedsinstallments. Borrower agrees to execute such further evidence of assignment of any awards, proceeds, damages or claims arising in connection with such condemnation or taking as Lender may require.
Appears in 2 contracts
Samples: Rents and Security Agreement (Acadia Realty Trust), And Security Agreement (Acadia Realty Trust)
Condemnation. Borrower shall Borrowers promptly give Lender notice of the actual or threatened commencement of any proceeding for the condemnation in respect of any Condemnation affecting either of the Property of which Borrower has knowledge Properties, and shall deliver or cause Mortgage Borrower Borrowers to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred Lender may participate in any such proceedings, and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may Borrowers shall cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity Borrowers to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments reasonably requested by it Lender to permit such participation. Borrower shallBorrowers shall or shall cause Mortgage Borrowers to, at its Borrowers’ or Mortgage Borrowers’ expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower Borrowers shall cause Mortgage Borrowers to continue to pay perform the Indebtedness Obligations at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness other Loan Documents and the Outstanding Principal Balance shall not be reduced until any Award Condemnation Proceeds shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessObligations. Lender shall not be limited to the interest paid on the Award Condemnation Proceeds by the condemning authority applicable Governmental Authority but shall be entitled to receive out of the Award Condemnation Proceeds interest at the rate or rates provided herein or in the Note. If the any Property or any portion thereof is taken by a condemning authorityGovernmental Authority, Borrower Borrowers shall cause Mortgage Borrower Borrowers to promptly commence and diligently prosecute the Restoration of the applicable Property and otherwise comply with the applicable provisions of Section 6.4 of the Mortgage 77 Loan Agreement. Borrower If any Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Condemnation Proceeds, Lender shall cause Mortgage Borrower to pay all costs of Restoration have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance Note shall have been sought, recovered or denied, to receive the Condemnation Proceeds, or a portion thereof sufficient to pay the Debt.
Appears in 2 contracts
Samples: Pledge and Security Agreement (MPG Office Trust, Inc.), Pledge and Security Agreement (MPG Office Trust, Inc.)
Condemnation. In the event that all or any portion of the Premises shall be damaged or taken through condemnation (which term shall include any damage or taking by any governmental authority, quasi-governmental authority, any party having the power of condemnation, or any transfer by private sale in lieu thereof), or any such condemnation shall be threatened, Borrower shall promptly give prompt written notice to Lender. Lender notice acknowledges that Owner’s rights to any condemnation award is subject to the terms of the actual Mortgage, the Intermediate Mez Loan Documents and the Senior Mez Loan Documents. Notwithstanding the foregoing, Borrower may not and shall not permit Owner, Intermediate Mez Borrower or threatened commencement Senior Mez Borrower to settle or compromise any claim, action or proceeding relating to such damage or condemnation without the prior written consent of Lender, which shall not be unreasonably withheld, delayed or denied; provided, further, that any of Owner, Intermediate Mez Borrower or Senior Mez Borrower may settle, adjust and compromise any such claim, action or proceeding for the condemnation which is of an amount less than five percent (5%) of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided Allocated Loan Amount provided no Event of Default has occurred and is continuing, in occurred. Any proceeds remaining after the event application of a condemnation where any award to reconstruct or repair the amount Premises or to the payment of the taking does Mortgage Loan, Intermediate Mez Loan and the Senior Mez Loan shall be paid to Lender and applied to the payment of the Debt whether or not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely mannerthen due. In the event that Owner is permitted pursuant to the terms of the Mortgage to reconstruct, restore or repair the Premises following a condemnation where the amount of any portion of the taking exceeds the Insurance Threshold or if an Event of Default then existsPremises, Borrower may (shall cause Owner to promptly and may cause diligently repair and restore the Premises in the manner and within the time periods required by the Mortgage, the Leases and any other agreements affecting the Premises. In the event that Owner is permitted pursuant to the terms of the Mortgage to elect not to reconstruct, restore or repair the Premises following a condemnation of any portion of the Premises, Borrower shall not permit Mortgage Borrower to) settle and compromise Owner to elect not to reconstruct, restore or repair the condemnation only with Property without the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceeds.
Appears in 2 contracts
Samples: Loan and Security Agreement (Ashford Hospitality Trust Inc), Loan and Security Agreement (Ashford Hospitality Trust Inc)
Condemnation. Borrower shall promptly give Lender notice If all or any part of the actual Licensed Lands are taken or threatened commencement appropriated for public or quasi- public use by right of any proceeding for the condemnation of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served eminent domain with or without litigation or transferred by agreement in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation use, and such taking or otherwise (including but not limited appropriation shall be of such an extent and nature as to any transfer made in lieu of materially handicap, impede or in anticipation impair Producer’s use of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and Licensed Lands in the manner provided for its payment contemplated in the Note and in Project Documents, as reasonably determined by Producer, Producer shall have the right, within thirty (30) days of receipt of notice of taking, to terminate this Agreement as of the date possession is taken by the condemning Governmental Body. No award for any partial or entire taking shall be apportioned, and Producer hereby assigns to Generator any award that may be made in such taking or condemnation, together with any and all rights of Producer now or hereafter arising in or to the Indebtedness award or any portion thereof; provided, however, that nothing contained herein shall be deemed to give Generator any interest in or to require Producer to assign to Generator any award made to Producer for the taking of personal property and fixtures belonging to Producer (including the Facility), for the interruption of or damage to the business of Producer, for the unamortized cost of improvements or for the removal of the Facility by Producer, and Producer shall have the right to prosecute its claim for an award based on the taking of personal property and fixtures belonging to Producer (including the Facility), for the interruption of or damage to the business of Producer, for the unamortized costs of improvements of Producer or the removal and relocating of the Facility by Producer. To the extent Generator receives proceeds from the condemning Governmental Body for claims of Producer, Generator shall immediately pay such proceeds to Producer. No temporary taking of the Licensed Lands or Producer’s right therein or under this Agreement shall terminate this Agreement, any award made to Producer by reason of any such temporary taking of Producer’s right in the Licensed Lands or under this Agreement shall belong entirely to Producer, and Generator shall not be reduced until entitled to any Award portion thereof. Producer shall have been actually received the right to claim, and applied by Lenderprosecute such claim, after against the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute for the Restoration taking of the Property Facility, expenses and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by removing and relocating the Net Insurance ProceedsFacility, and damage to Producer’s business conducted at the Licensed Lands.
Appears in 2 contracts
Samples: License and Services Agreement, License and Services Agreement
Condemnation. Borrower shall promptly give Lender prompt notice of the any actual or threatened commencement temporary or permanent taking by any Governmental Authority as the result or in lieu or in anticipation of the exercise of the right of condemnation or eminent domain, of all or any proceeding for part of the condemnation Property, or any interest therein or right accruing thereto, including any right of access thereto or any change of grade affecting the Property or any part thereof (a “Condemnation”) by any Governmental Authority of all or any part of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies a copy of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation Condemnation where the amount of the taking does not exceed the Insurance Restoration Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out Condemnation; provided that the same is effected in a commercially reasonable and timely manner. In the event of a condemnation Condemnation where the amount of the taking exceeds the Insurance Restoration Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation Condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, thereof and Borrower shall from time to time deliver to Lender all instruments requested by it Lender to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking)Condemnation, Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessAgreement. Lender shall not be limited to the interest paid on any compensation paid by any Governmental Authority in connection with a Condemnation in respect of all or any part of the Award Property (the “Award”) by the condemning authority any Governmental Authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authorityany Governmental Authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of Section 14. If the Mortgage Loan Agreement. Borrower Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall cause Mortgage Borrower to pay all costs of Restoration have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.
Appears in 2 contracts
Samples: Loan and Security Agreement (NNN 2003 Value Fund LLC), Loan and Security Agreement (NNN 2003 Value Fund LLC)
Condemnation. Borrower (a) Tenant and Landlord shall promptly give Lender the other written notice upon knowledge of the actual or threatened commencement of any condemnation or eminent domain proceeding for or other governmental taking affecting the condemnation of Premises or any portion thereof, and, to the Property of which Borrower has knowledge and extent not otherwise received, shall cause Mortgage Borrower to deliver to Lender the other copies of any and all papers served in connection with such proceedingstherewith. Provided no Event Subject to the remainder of Default has occurred and is continuingthis Section 20, in if during the event of a condemnation where the amount Term all or any part of the Premises shall be taken for any public or any quasi-public use under any statute or by right of eminent domain or by private purchase in lieu thereof, all compensation awarded or paid as a result thereof shall belong to and be the property of Landlord without any participation by Xxxxxx and without any deduction therefrom for any estate hereby vested in or owned by Tenant and Tenant hereby irrevocably assigns to Landlord any award or payment to which Tenant may be or become entitled by reason of any taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds Premises or any part thereof, subject to the Insurance Threshold or if an Event other provisions of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender this Section 20. Landlord shall have the opportunity exclusive power to participatecollect, at Borrower’s cost, in any litigation receive and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute retain any such proceedingsaward proceeds and to make any compromise or settlement in connection with such award, and provided that Landlord shall consult with Lender, its attorneys and experts, and cooperate with them Tenant in the carrying on settlement or defense compromise of any such proceedingsaward to the extent Tenant has restoration obligations relating to such taking pursuant to this Section 20. Notwithstanding Nothing herein shall be deemed to preclude Tenant from prosecuting any taking by any public claim directly against the condemning authority in such condemnation proceeding for loss of business or quasi-public authority through condemnation depreciation to, damage to or cost of removal of, or for value of, stock, trade fixtures, furniture, machinery, equipment and other personal property belonging to Tenant (including, without limitation, Tenant’s Personal Property), provided that no such claim shall diminish or otherwise (including but not limited adversely affect Landlord’s award. Xxxxxx agrees to execute any transfer made and all further documents that may be reasonably required in lieu order to facilitate collection by Landlord of or any and all awards. Tenant, in anticipation of the exercise of such taking)cooperation with Xxxxxxxx, Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction right to participate in any condemnation proceedings for the purpose of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the protecting Xxxxxx’s interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceedshereunder.
Appears in 1 contract
Condemnation. Borrower shall promptly give Lender notice of the actual (or threatened commencement of any proceeding for the condemnation of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to to) give Lender prompt notice of any actual or threatened Condemnation by any Governmental Authority of all or any part of the Property and shall (or shall cause Mortgage Borrower to) deliver to Lender copies a copy of any and all notices or papers served in connection with such Condemnation or related proceedings. Provided no Event Subject to the rights of Default has occurred and is continuing, in Mortgage Lender under the event of a condemnation where the amount of the taking does not exceed the Insurance ThresholdMortgage Loan Documents, Borrower may (or and may cause only allow Mortgage Borrower to) to settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation any Condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower or Mortgage Borrower’s costcost and expense, in any applicable litigation or proceeding and settlement discussions in respect thereof, thereof and Borrower and Mortgage Borrower shall from time to time deliver to Lender all instruments requested by it Lender to permit such participation. Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, Borrower shallshall cause Mortgage Borrower, at its cost and expense, cause Mortgage Borrower to diligently prosecute any such litigations or proceedings, and shall (or shall cause Mortgage Borrower to) consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such litigations or proceedings. Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, Lender is hereby irrevocably appointed as Borrower’s attorney-in-fact, coupled with an interest, with exclusive power to collect, receive and retain any Award and to make any compromise or settlement in connection with any Condemnation. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking)Condemnation, Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in this Agreement, the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtednessother Loan Documents. Lender shall not be limited to the interest paid on the Award by the condemning authority any Governmental Authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If any portion of the Property or any portion thereof is taken by a condemning authorityany Governmental Authority, subject to the Mortgage Loan Documents, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute to completion the Restoration of the Property and otherwise comply with the applicable provisions of Section 5.1.17 of the Mortgage Loan Agreement. Borrower Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, if the Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall cause Mortgage Borrower to pay all costs of Restoration have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive the Award or a portion thereof sufficient to pay the Debt in full.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Plymouth Industrial REIT Inc.)
Condemnation. Borrower shall promptly give Lender notice of In the actual event that all or threatened commencement of any proceeding for the condemnation portion of the Property shall be damaged or taken through any Taking, or any such Taking or condemnation shall be threatened, Borrower shall give prompt written notice to Lender. Lender acknowledges that Mortgage Borrower’s rights to any condemnation award in respect of which any Taking are subject to the terms of the Mortgage Loan Agreement. Notwithstanding the foregoing, and subject to Section 6.1(f) above, Borrower has knowledge may not and shall cause not permit Mortgage Borrower to deliver settle or compromise any claim, action or proceeding relating to Lender copies such Taking without the prior written consent of Lender, which shall not be unreasonably withheld, delayed or denied; provided, further, that Borrower may permit Mortgage Borrower to settle, adjust and compromise any and all papers served in connection with such proceedings. Provided claim, action or proceeding which does not exceed forty percent (40%) of the designated Combined Allocated Loan Amount applicable to the affected Individual Property so long as no Monetary Default or Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement excess Proceeds shall be paid and compromise must be carried out applied as provided in a commercially reasonable and timely mannerSection 2.3.2. In the event of a condemnation where that Mortgage Borrower is permitted or required Mezzanine Loan Agreement (First Mezzanine) pursuant to the amount terms of the taking exceeds Mortgage Loan Agreement to reconstruct, restore or repair the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense Property following a Taking of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise Individual Property (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authoritythereof), Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute repair and restore such Individual Property in the Restoration of manner and within the Property time periods required by the Mortgage Loan Agreement, the Master Lease and otherwise comply with any other agreements affecting such Individual Property. In the applicable provisions event that Mortgage Borrower is permitted pursuant to the terms of the Mortgage Loan Agreement. Agreement to elect not to reconstruct, restore or repair the Individual Property following a Taking of any portion of such Individual Property, Borrower shall cause not permit Mortgage Borrower to pay all costs elect not to reconstruct, restore or repair such Individual Property without the prior written consent of Restoration whether or not such costs are covered by the Net Insurance ProceedsLender.
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Bloomin' Brands, Inc.)
Condemnation. Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the condemnation of the Property of which Borrower has knowledge and shall cause Mortgage Borrower Property Owner to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower Property Owner to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower Property Owner to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower Property Owner to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower Property Owner to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower Property Owner to pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceeds.
Appears in 1 contract
Samples: Term Loan Agreement (Strategic Storage Trust VI, Inc.)
Condemnation. Borrower shall promptly give Lender notice of the actual If all or threatened commencement of any proceeding for the condemnation portion of the Property shall be damaged or taken through condemnation (which term when used in this Mortgage shall include any damage or taking by any governmental or quasi-governmental authority and any transfer or grant by private sale made in anticipation of which Borrower has knowledge or in lieu thereof), either temporarily or permanently, then the entire Indebtedness shall, at the option of Lender, become immediately due and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided payable without Make Whole Payment (so long as no Event of Default has occurred then exists) and without notice to Borrower or any other person or entity. Promptly upon learning of the institution or the proposed, contemplated or threatened institution of any condemnation proceeding, Borrower shall notify Lender of the pendency of such proceedings, and no settlement respecting awards in such proceedings shall be effected without the consent of Lender. Lender shall be entitled to receive all compensation, awards, proceeds and other payments or relief relating to or payable as a result of such condemnation (“Award”), and any failure by Borrower to immediately deliver any Award received directly by Borrower to Lender shall constitute an immediate Event of Default under Paragraph 2.1 of this Mortgage, without any notice or cure periods. Lender is continuinghereby authorized, at its option, to commence, appear in and prosecute, in its own or in the event name of Borrower, any action or proceeding relating to any condemnation, and to settle or compromise any claim in connection therewith. All such compensation, awards, damages, claims, rights of action and proceeds and the right thereto are hereby assigned by Borrower to Lender. If Lender does not elect to declare the entire Indebtedness immediately due and payable, as provided above, then Lender, after deducting from said condemnation proceeds all of its expenses incurred in the collection and administration of such sums, including, without limitation, Reasonable Attorneys’ Fees, may apply the net award (“Net Award”) or any part thereof, at its option, [i] to a condemnation where the amount prepayment of the taking does not exceed the Insurance ThresholdNote, Borrower may without Make Whole Payment (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if unless an Event of Default then exists), Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise [ii] to the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation repair and/or restoration of the exercise Property upon such conditions as Lender may determine, and/or [iii] for any other purposes or objects for which Lender is entitled to advance funds under this Mortgage, all without reducing or impairing the lien of this Mortgage or any obligations secured hereby. Any balance of such taking), moneys then remaining shall be paid to Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until or any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction other person or discharge of the Indebtednessentity lawfully entitled thereto. Lender shall not be limited obligated to see to the interest proper application of any amount paid over to Borrower. Borrower agrees to execute such further assignment of any compensation, awards, damages, claims, rights of action and proceeds as Lender may require. If, prior to the receipt by Lender of such award or proceeds, the Property shall have been sold on foreclosure of this Mortgage, or as a result of other legal action relating to this Mortgage or the Award by Note, Lender shall have the condemning authority but shall be entitled right to receive out such award or proceeds to the extent of any unpaid Indebtedness following such sale, with legal interest thereon, whether or not a deficiency judgment on this Mortgage or the Note shall have been sought or recovered, and to the extent of Reasonable Attorneys’ Fees, costs and disbursements incurred by Lender in connection with the collection of such award or proceeds. Notwithstanding the provisions of the Award interest at the rate or rates provided herein or immediately preceding paragraph of this Paragraph 1.5, in the Note. If event Lender does not elect to declare the entire Indebtedness immediately due and payable, Lender shall release the Net Award paid to it for any taking of a portion of the Property or any portion thereof is taken by a condemning authority, to Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute for reimbursement of the Restoration costs of restoration of the Property and otherwise comply with the applicable provisions improvements thereon to as good or better condition as existed immediately prior to such taking, to the extent possible in light of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by taking (“Condemnation Restoration”), provided that the Net Insurance Proceeds.Award shall be released upon the following conditions which must be fulfilled to the satisfaction of Lender in Lender’s sole discretion:
Appears in 1 contract
Samples: Assignment of Rents and Security Agreement (Griffin Industrial Realty, Inc.)
Condemnation. Borrower shall promptly give Lender prompt notice of the any actual or threatened commencement written threat of Condemnation by any proceeding for the condemnation Governmental Authority of all or any part of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies a copy of any and all notices or papers served in connection with such Condemnation or related proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation any Condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s costcost and expense, in any applicable litigation or proceeding and settlement discussions in respect thereof, thereof and Borrower shall from time to time deliver to Lender all instruments requested by it Lender to permit such participation. Borrower shall, at its cost and expense, cause Mortgage Borrower to diligently prosecute any such litigations or proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such litigations or proceedings. Lender is hereby irrevocably appointed as Borrower’s attorney-in-fact, coupled with an interest, with exclusive power to collect, receive and retain any Award and to make any compromise or settlement in connection with any Condemnation. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking)Condemnation, Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in this Agreement, the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtednessother Loan Documents. Lender shall not be limited to the interest paid on the Award by the condemning authority any Governmental Authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If any portion of the Property or any portion thereof is taken by a condemning authorityany Governmental Authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute to completion the Restoration of the Property and otherwise comply with the applicable provisions of Section 5.3 hereof. If the Mortgage Loan Agreement. Borrower Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall cause Mortgage Borrower to pay all costs of Restoration have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive the Award or a portion thereof sufficient to pay the Debt in full.
Appears in 1 contract
Condemnation. Borrower Mortgagor shall promptly give Lender notice of the actual or threatened commencement notify Holder immediately of any threatened or pending proceeding for condemnation affecting the Property or arising out of damage to the Property, and Mortgagor shall, at Mortgagor's expense, diligently prosecute any such proceedings. Holder shall have the right (but not the obligation) to participate in any such proceeding and to be represented by counsel of its own choice. Holder shall be entitled to receive all sums which may be awarded or become payable to Mortgagor for the condemnation of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of Property, or any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect part thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any for public or quasi-public authority through condemnation use, or otherwise by virtue of private sale in lieu thereof, and any. sums which may be awarded or become payable to Mortgagor for injury or damage to the Property. Mortgagor shall, promptly upon request of Holder, execute such additional assignments and other documents as may be necessary from time to time to permit such participation and to enable Holder to collect and receipt for any such sums. All such sums are hereby assigned to Holder, and shall, after deduction therefrom of all reasonable expenses actually incurred by Holder, including attorneys' fees, at Holder's option be (1) released to Mortgagor, or (2) applied (upon compliance with such terms and conditions as may be required by Holder) to repair or restoration of the Property so affected, or (3) applied to the payment of the Secured Indebtedness in such order and manner as Holder, in its sole discretion, may elect, whether or not due. In any event the unpaid portion of the Secured Indebtedness shall remain in full force and effect and the payment thereof shall not be excused. Holder shall not be, under any circumstances, liable or responsible for failure to collect or to exercise diligence in the collection of any such sum or for failure to see to the proper application of any amount paid over to Mortgagor. Xxxxxx is hereby authorized, in the name of Xxxxxxxxx, to execute and deliver valid acquittances for, and to appeal from, any such award, judgment or decree. All costs and expenses (including but not limited to attorneys' fees) incurred by Xxxxxx in connection with any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but condemnation shall be entitled a demand obligation owing by Xxxxxxxxx (which Mortgagor hereby promises to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower pay) to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower Holder pursuant to pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceedsthis Mortgage.
Appears in 1 contract
Samples: FelCor Lodging Trust Inc
Condemnation. Borrower Mortgagor shall notify Lender promptly give Lender notice of the actual or threatened commencement of any proceeding proceedings for the condemnation or taking of the Mortgaged Property of which Borrower has knowledge or any portion thereof, and shall cause Mortgage Borrower to deliver to Lender copies of any and all material papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuingMortgagor shall not adjust, in the event of a condemnation where the amount of the taking does not exceed the Insurance Thresholdcompromise, Borrower may (settle or may cause Mortgage Borrower to) settle and compromise enter into any agreement with respect to such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with proceedings without the prior written consent of Lender (Lender, which consent shall not be unreasonably withheld withheld, conditioned or delayed. So long as such condemnation, or purchase in lieu thereof, of the Mortgaged Property or any portion thereof, does not result in the reduction of the fixed rent that the tenant is obligated to pay under the applicable Lease, (i) Mortgagor shall be entitled to collect, receive and retain up to $5,000,000 of any Proceeds from such condemnation, or purchase in lieu thereof, that are not otherwise required by the Lease to be made available to the tenant under the Lease or to be applied to the repair or restoration of the Mortgaged Property ("Available Condemnation Proceeds"), and (ii) Lender may, in Lender's sole discretion, apply and/or require Mortgagor to apply any such Available Condemnation Proceeds in excess of $5,000,000 toward the payment of the Indebtedness or to the repair or restoration of the Mortgaged Property. If, as a result of any condemnation, or purchase in lieu thereof, of the Mortgaged Property, or any part thereof, any tenant reduces, or is entitled to reduce, the fixed rent that it is paying under any Lease, (x) Lender shall have be entitled to collect and receive the opportunity to participateProceeds from such condemnation or purchase, at Borrower’s costgive proper receipts and acquittances therefor and, in any litigation and settlement discussions in respect thereofLender's sole discretion, and Borrower shall from time apply and/or to time deliver require Mortgagor to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in apply the carrying on or defense Allocable Portion of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation Available Condemnation Proceeds toward the payment of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, or to the reduction repair or discharge restoration of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but Mortgaged Property and (y) Mortgagor shall be entitled to receive the balance of any Available Condemnation Proceeds in excess of such Allocable Portion (less any cost to Lender of recovering and paying out such Proceeds, including reasonable attorneys' fees, costs and expenses allocable to inspecting any repair, restoration or rebuilding work and the plans and specifications therefor). In the event that any Available Condemnation Proceeds are required by Lender to be used toward payment of the Award interest at Indebtedness, no Make-Whole Amount shall be due and payable on such payment. In the rate or rates provided herein or event that any Available Condemnation Proceeds are made available to Mortgagor for repair and restoration of the Mortgaged Property, the parties shall establish a reasonable mechanism for Lender to provide oversight as to the distribution of such Available Condemnation Proceeds. In the event that Lender does not require 100% of any Available Condemnation Proceeds be applied either toward payment of the Indebtedness and/or toward repair, restoration and rebuilding of the Mortgaged Property, the provisions of Section 4.3 of the Loan Agreement shall govern. The "Allocable Portion" of any Available Condemnation Proceeds shall be the portion of such Proceeds that is equal to the amount, if any, by which Consolidated Debt (as defined in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause ) would be required to be reduced (assuming that prior to such reduction, the aggregate amount of Non-Mortgage Borrower Loans outstanding was equal to pay all costs the full Aggregate Non-Mortgage Commitment Amount (as such terms are defined in the Loan Agreement)) so that after giving effect to such reduction and to any reduction in the fixed rents payable under any Lease as a result of Restoration whether any condemnation, or not purchase in lieu, the Debt Service Coverage Ratio (as defined in the Loan Agreement) for the most recently completed period of four consecutive Fiscal Quarters (calculated on a pro forma basis, assuming both such costs are covered by reduction in such assumed Consolidated Debt and such reduction in fixed rents under any Lease throughout such period) would be the Net Insurance Proceedssame as the Debt Service Coverage Ratio for such period before such reductions (but assuming that the Aggregate Amount of Non-Mortgage Loans outstanding throughout such period had been equal to the full Aggregate Non-Mortgage Commitment Amount).
Appears in 1 contract
Condemnation. Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the condemnation Condemnation of the any Individual Property upon obtaining information of which Borrower has knowledge such proceeding and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, Lender may participate in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise any such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or proceedings if an Event of Default then exists, Borrower may (and may cause exists or permit Mortgage Borrower to) settle and compromise if the condemnation only with amount of the prior written consent Award exceeds three percent 3% of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereofRelease Amount for the related Individual Property, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including including, but not limited to to, any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessDebt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the any Individual Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the applicable Individual Property or any portion thereof pursuant to SECTION 6.4 hereof and otherwise comply with the applicable provisions of SECTION 6.4 hereof. If any Individual Property is sold, through foreclosure or otherwise, prior to the Mortgage Loan Agreement. Borrower receipt by Lender of the Award, Lender shall cause Mortgage Borrower to pay all costs of Restoration have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.
Appears in 1 contract
Condemnation. Borrower If, prior to the Closing Date, eminent domain proceedings are commenced against all or any substantial part of a Project, Partnership shall promptly immediately give Lender notice to Purchaser of such fact and, at Purchaser’s option (to be exercised within fifteen (15) days after Partnership’s notice), this Agreement shall terminate solely with respect to the actual or threatened commencement of any proceeding for Project relating to the condemnation of (the Property of which Borrower has knowledge and shall cause Mortgage Borrower “Condemned Project”), subject to deliver to Lender copies of any and all papers served the limitations in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely mannerSection 20 hereof. In the event of any such termination, neither party will have further obligations under this Agreement with respect to such Condemned Project (other than the Surviving Indemnity Obligations, which obligations shall survive any such termination), Purchaser shall, at the request of Partnership, execute any document reasonably requested by Partnership to evidence such termination including, without limitation, a condemnation where quit claim deed, and the amount Purchase Price shall be adjusted as provided in Section 20 hereof. If Purchaser fails to elect to terminate this Agreement with respect to such Condemned Project in the manner provided in this Section 14, then there shall be no reduction in the Purchase Price, and Partnership shall assign to Purchaser at the Closing Date all of the taking exceeds the Insurance Threshold Partnership’s right, title and interest in and to any award made or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise to be made in the condemnation only proceedings. Prior to the Closing Date, Partnership shall not designate counsel, appear in, or otherwise act with respect to the condemnation proceedings without Purchaser’s prior written consent of Lender (consent, which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity ; provided, however, that if any action is necessary with respect to participatesuch proceeding to avoid any forfeiture or material prejudice, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but Partnership shall be entitled to receive out take such action as and to the extent necessary without obtaining Purchaser’s prior written consent. For purposes of this Section, the words “substantial part” means (i) the amount of any condemnation award is estimated to exceed $1,000,000, (ii) access to or parking on the Condemned Project is adversely affected, (iii) as a result of the Award interest at condemnation, the rate Condemned Project is in violation of laws or rates provided herein or in the Note. If the Property fails to comply with zoning or any portion thereof is taken by a condemning authoritycovenants, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute conditions or restrictions affecting the Restoration Condemned Project, or (iv) the condemnation entitles any of the Property and otherwise comply with the applicable provisions Tenants which lease at least fifty percent (50%) of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower rentable square feet of the Condemned Project to pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceedsterminate its Lease.
Appears in 1 contract
Samples: Purchase Agreement (KBS Real Estate Investment Trust, Inc.)
Condemnation. Borrower Borrowers shall promptly give Lender notice notify, or cause to be notified, Administrative Agent of the actual or threatened commencement of any proceeding for the condemnation Condemnation of the any Mortgaged Property of which Borrower has knowledge Borrowers have Knowledge and shall deliver or cause Mortgage Borrower to deliver be diligently delivered to Lender Administrative Agent copies of any and all material papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower Administrative Agent may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, participate in any litigation and settlement discussions in respect thereofsuch proceedings, and Borrower the Borrowers shall from time to time deliver to Lender Administrative Agent all instruments requested by it them to permit such participation. Borrower Borrowers shall, at its their expense, cause Mortgage Borrower to diligently prosecute or cause to be diligently prosecuted any such proceedings, and shall consult with LenderAdministrative Agent, its attorneys attorneys, and experts, and cooperate with them in the carrying on or defense of any such proceedings. Borrowers may settle and compromise the Proceeds of any Condemnation where the loss exceeds $5,000,000 (a “Material Condemnation”) only with the consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed). Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower the Borrowers shall continue to pay the Indebtedness Obligations at the time and in the manner provided for its payment in the Note and in this Agreement herein and the Indebtedness other Loan Documents, and the Obligations shall not be reduced unless and until any Award Proceeds shall have been actually received and applied by LenderAdministrative Agent, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessObligations pursuant to the terms of Section 5.5(3) or 5.5(4) above. Lender Administrative Agent shall not be limited to the interest paid on the Award such Proceeds by the condemning authority but shall be entitled to receive out of the Award such Proceeds interest at the rate or rates provided herein applicable to the Loan. To the extent the Proceeds of any Condemnation are to be applied by Administrative Agent pursuant to Section 5.5(3) or in 5.5(4) above, the NoteBorrowers shall cause such Proceeds to be paid directly to the Administrative Agent to be held and applied pursuant to such provisions. If the any Mortgaged Property or any portion thereof is taken by a condemning authority, Borrower the Borrowers shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration restoration of such Mortgaged Property to the Property extent practicable to be of at least equal value and otherwise comply with of substantially the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower same character as prior to pay all costs of Restoration whether or not such costs are covered by the Net Insurance ProceedsCondemnation.
Appears in 1 contract
Condemnation. Borrower shall (and shall cause Mortgage Borrower to) promptly give Lender notice of the actual or threatened commencement of any proceeding for the condemnation Condemnation of the any Individual Property (or any portion thereof) of which Borrower or Mortgage Borrower has knowledge and shall (and shall cause Mortgage Borrower to to) deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event Subject to the rights of Default has occurred and is continuingMortgage Lender under the Mortgage Loan Agreement, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower Lender may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, participate in any litigation and settlement discussions in respect thereofsuch proceedings, and Borrower shall from time to time deliver to (and cause Mortgage Borrower to deliver to) Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, shall cause Mortgage Borrower to to, at Borrower’s or Mortgage Borrower’s expense, diligently prosecute any such proceedings, and shall to consult with Lender, its attorneys and experts, and to cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessDebt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the any Individual Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply (or cause Tenant to do so, as applicable) in accordance with the applicable provisions of Section 7.4 of the Mortgage Loan AgreementAgreement and Section 7.4 hereof. Borrower shall cause Mortgage Borrower or Tenant, as applicable, to pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceeds. Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, if the Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.
Appears in 1 contract
Samples: Mezzanine a Loan Agreement (Industrial Logistics Properties Trust)
Condemnation. Borrower shall promptly give Lender notice The Agreement and the interest of the actual BOCES shall terminate as to the Project or threatened commencement portion thereof on Leased Property and the Leased Property appertaining thereto condemned or taken by eminent domain when title thereto vests in the party condemning or taking the same (hereinafter referred to as the “termination date”). The BOCES hereby irrevocably assigns to the Authority all right, title and interest of the BOCES in and to any net proceeds of any proceeding for the condemnation of the Property of which Borrower has knowledge and shall cause Mortgage Borrower award, compensation or damages (hereinafter referred to deliver to Lender copies of any and all papers served as an “award”), payable in connection with any such proceedingscondemnation or taking during the Lease Term. Provided no Event of Default has occurred Such net proceeds shall be initially paid to the Authority for deposit and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely mannerapplication as hereinafter provided. In the event of a any such condemnation where or taking the amount BOCES shall within ninety (90) days after the termination date therefor determine whether or not to repair, reconstruct, restore or improve such Project and give written notice of such determination to the Authority. If the BOCES elects to repair, reconstruct, restore or improve such Project, so long as the BOCES is not in default under Section 8.01(a) hereof, any such net proceeds received by the Authority shall be deposited to the credit of the taking exceeds Construction Fund and be applied to finance the Insurance Threshold costs of such repairs, reconstruction, restoration or if an Event improvements in the same manner and upon the same conditions set forth in the Resolution for the payment of Default then existsthe Costs of the Project from the Construction Fund. In the event the BOCES elects not to repair, Borrower may (reconstruct, restore or improve such Project, the award shall be paid to the Authority, as a prepayment of the Rentals hereunder, for deposit to the Debt Service Fund and may cause application to the redemption of Outstanding Bonds or permit Mortgage Borrower to) settle and compromise for payment to the condemnation only Trustee, to be held by the Trustee, in trust, pursuant to Section 12.01 of the Resolution for the payment of Outstanding Bonds in accordance with the prior written instructions of an Authorized Officer of the Authority. The Authority shall cooperate fully with the BOCES in the handling and conduct of any prospective or pending condemnation proceedings with respect to the Project on Leased Property or any part thereof and will, to the extent it may lawfully do so, permit the BOCES to litigate in any such proceeding in the name and behalf of the Authority. In no event will the Authority voluntarily settle, or consent to the settlement of, any prospective or pending condemnation proceedings with respect to the Project on Leased Property or any part thereof without the written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance ProceedsBOCES.
Appears in 1 contract
Samples: Lease and Agreement
Condemnation. Borrower shall promptly give Lender notice (a) Mortgagor hereby irrevocably assigns to the Mortgagee any award or payment which become payable by reason of any taking of the actual Mortgaged Property, or threatened commencement of any proceeding for the condemnation of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuingpart thereof, whether directly or indirectly or temporarily or permanently, in the event or by condemnation or other eminent domain proceedings or by reason of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect sale under threat thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of the right of condemnation or other eminent domain proceedings or by reason of sale under threat thereof, or in anticipation of the exercise of the right of condemnation or other eminent domain proceedings (hereinafter called "Taking"). Forthwith upon receipt by Mortgagor of notice of the institution of any proceedings or negotiations for a Taking, Mortgagor shall give notice thereof to Mortgagee. Mortgagee may appear in any such taking)proceedings and participate in any such negotiations and may be represented by counsel. Mortgagor, Borrower notwithstanding that Mortgagee may not be a party to any such proceedings, will promptly give to Mortgagee copies of all notices, pleadings, judgments, determinations and other papers received by Mortgagor therein. Mortgagor will not enter into any agreement permitting or consenting to the taking of the Mortgaged Property, or any part thereof, or providing for the conveyance thereof in lieu of condemnation, with anyone authorized to acquire the same in condemnation or by eminent domain unless Mortgagee shall continue first have consented thereto in writing, which consent will not be unreasonably withheld. All Taking awards shall be adjusted jointly by Mortgagor and Mortgagee. All awards payable as a result of a Taking shall be paid to pay the Indebtedness Mortgagee, which may, at the time its option, apply them, after first deducting Mortgagee's and Mortgagor's reasonable expenses incurred in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collectioncollection thereof, to the reduction or discharge payment of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not due and in such costs are covered by order of application as Mortgagee may determine, or to the Net Insurance Proceedsrepair or restoration of the Mortgaged Property, in such manner as Mortgagee may determine. Any application of taking awards to principal of the Note shall not extend or postpone the due dates of the monthly installments payable under the Note or change the amount of such installments.
Appears in 1 contract
Samples: Infinite Graphics Inc
Condemnation. Borrower shall promptly give Lender notice of the actual or threatened (in writing) commencement of any proceeding for the condemnation Condemnation of all or any portion of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event Subject to the rights of Default has occurred and is continuingSenior Lender under the Senior Loan Documents, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower Lender may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, participate in any litigation and settlement discussions in respect thereofsuch proceedings, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, diligently prosecute (or cause Mortgage Borrower Owner to diligently prosecute prosecute) any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including including, but not limited to to, any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note Notes and in this Agreement and the Indebtedness Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of reasonable out-of-pocket expenses of collection, to the reduction or discharge of the IndebtednessDebt. Lender shall not be limited to the interest paid on the Award by the condemning authority but but, subject to the rights of Senior Lender, shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the NoteNotes. If the Property or any portion thereof is taken by a condemning authority, Borrower shall promptly commence and diligently prosecute the Restoration of the Property (or cause Mortgage Borrower Owner to promptly commence and diligently prosecute the Restoration of the Property Property) and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration Section 5.4, whether or not an Award is available to pay the costs of such costs are covered Restoration. If the Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Net Insurance ProceedsAward, Lender shall have the right, subject to the rights of Senior Lender and whether or not a deficiency judgment on the Notes shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.
Appears in 1 contract
Condemnation. Borrower shall promptly give Lender Agent notice of the actual or threatened (upon receipt by Borrower of written notice of such threat) commencement of any proceeding for the condemnation of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender Agent copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance ThresholdFive Million Dollars ($5,000,000), Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out ; provided that the same is effected in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold Five Million Dollars ($5,000,000) or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender Agent (which consent shall not be unreasonably withheld or delayed) and Lender Agent shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, thereof and Borrower shall from time to time deliver to Lender Agent all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with LenderAgent, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay all amounts payable under the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the NoteLoan Documents. If the Property Project or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan this Agreement. Borrower If the Property is sold, through foreclosure or otherwise, prior to the receipt by Lenders of any condemnation award, Lenders shall cause Mortgage Borrower to pay all costs of Restoration have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive such costs are covered by award, or a portion thereof sufficient to pay the Net Insurance Proceedsremaining indebtedness.
Appears in 1 contract
Samples: Loan Agreement (Taubman Centers Inc)
Condemnation. Borrower shall promptly give Lender notice of the actual If all or threatened commencement of any proceeding for the condemnation portion of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a be damaged or taken through condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent term when used in this Mortgage shall not be unreasonably withheld include any damage or delayed) taking by any governmental or quasi-governmental authority and Lender shall have any transfer or grant by private sale made in anticipation of or in lieu thereof), either temporarily or permanently, then the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower entire Indebtedness shall, at its expensethe option of Mortgagee, cause Mortgage become immediately due and payable without prepayment premium and without notice to Borrower to diligently prosecute or any other person or entity. Promptly upon learning of the institution or the proposed, contemplated or threatened institution of any condemnation proceeding, Borrower shall notify Mortgagee of the pendency of such proceedings, and no settlement respecting awards in such proceedings shall consult with Lender, its attorneys and experts, and cooperate with them in be effected without the carrying on or defense consent of any such proceedingsMortgagee. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but Mortgagee shall be entitled to receive out all compensation, awards, proceeds and other payments or relief relating to or payable as a result of the Award interest such condemnation. Mortgagee is hereby authorized, at the rate or rates provided herein its option, to commence, appear in and prosecute, in its own or in the Notename of Borrower, any action or proceeding relating to any condemnation, and to settle or compromise any claim in connection therewith. All such compensation, awards, damages, claims, rights of action and proceeds and the right thereto are hereby assigned by Borrower to Mortgagee. If Mortgagee does not elect to declare the entire Indebtedness immediately due and payable, as provided above, then Mortgagee, after deducting from said condemnation proceeds all of its expenses incurred in the collection and administration of such sums, including, without limitation, attorneys' fees, may apply the net proceeds or any part thereof, at its option, [i] to a prepayment of the Agreement, without prepayment premium, [ii] to the repair and/or restoration of the Property upon such conditions as Mortgagee may determine, and/or [iii] for any other purposes or objects for which Mortgagee is entitled to advance funds under this Mortgage, all without reducing or impairing the lien of this Mortgage or any obligations secured hereby. Any balance of such moneys then remaining shall be paid to Borrower or any other person or entity lawfully entitled thereto. Mortgagee shall not be obligated to see to the proper application of any amount paid over to Borrower. Borrower agrees to execute such further assignment of any compensation, awards, damages, claims, rights of action and proceeds as Mortgagee may require. If, prior to the receipt by Mortgagee of such award or proceeds, the Property shall have been sold on foreclosure of this Mortgage, or as a result of other legal action relating to this Notwithstanding the foregoing, Mortgagee shall release the net proceeds of any award paid to it for any taking of a portion thereof is taken by a condemning authority, Borrower shall cause Mortgage of the Property to Borrower to promptly commence and diligently prosecute be utilized by Borrower in the Restoration restoration of the Property and otherwise comply with the applicable provisions improvements thereon to as good or better condition as existed immediately prior to such taking, to the extent possible in light of the Mortgage Loan Agreement. Borrower taking (the "Restoration"), provided that such net proceeds shall cause Mortgage Borrower be released upon such conditions as Mortgagee shall determine, including fulfillment of the following conditions to pay all costs the satisfaction of Restoration whether or not such costs are covered by the Net Insurance Proceeds.Mortgagee, Mortgagee exercising its sole discretion:
Appears in 1 contract
Samples: Loan Agreement (Jameson Inns Inc)
Condemnation. Borrower shall promptly give Lender notice Immediately upon obtaining knowledge of the actual or threatened commencement institution of any proceeding proceedings for the condemnation of the Property Security or any portion thereof, Trustor shall notify Beneficiary of which Borrower has knowledge the pendency of such proceedings and shall cause Mortgage Borrower to deliver to Lender copies the time and place of all meetings, hearings, trials or other proceedings relating thereto. Beneficiary may participate in any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower Trustor shall from time to time deliver to Lender Beneficiary all instruments requested required by it to permit such participation. Borrower Trustor shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with LenderBeneficiary, its attorneys and experts, and cooperate with them in the carrying on conduct of or defense of any such proceedings. Notwithstanding Subject to the rights of the Senior Lender, the proceeds of any taking by award or claim for damages, direct or consequential, in connection with any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made other taking of the Security, or part thereof, or for conveyance in lieu of condemnation, are hereby assigned and shall be paid to Beneficiary and shall be applied, first, to reimburse Beneficiary or Trustee for all costs and expenses, including reasonable attorneys’ fees, incurred in anticipation connection with collection of such proceeds and, second, to restoration and repair of the exercise Security, so long as the remaining uncondemned portion of such takingthe Security has an appraised market value, from an appraiser of Beneficiary choice, of not less than the sum of (i) the outstanding balances of all encumbrances prior to the Note plus (ii) the Note balance (if it does not, then it shall be used in accordance with the third priority of application), Borrower shall continue to pay the Indebtedness and, third, at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not Beneficiary’s option, may be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtednessindebtedness secured hereby, or to the restoration or repair of the Security, or released to Trustor to make the necessary restoration or repairs. Lender Beneficiary shall not be limited be, in any event or circumstance, liable or responsible for failure to collect, or exercise diligence in the interest paid on collection of, any such proceeds, judgments, decrees or awards. Any application of proceeds to principal shall not extend or postpone the Award by the condemning authority but shall be entitled to receive out due date of the Award interest at installments due under the rate Note or rates provided herein or in change the Noteamount of such installments. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan AgreementXxxxxxxx Xxxxxxx DDA ATTACHMENT NO. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceeds.14 978949_2.doc ARTICLE VI
Appears in 1 contract
Condemnation. Borrower shall promptly give Lender written notice of the actual or threatened commencement of any proceeding for the exercise of a right of condemnation or eminent domain affecting all or any part of the Mortgaged Property of which Borrower has knowledge (each such event being hereinafter referred to as a "Condemnation"), and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedingsCondemnation. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking)) of all or any part of the Mortgaged Property through a Condemnation, Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in Note, this Agreement Security Instrument and the Indebtedness Other Security Documents, and the Debt shall not be reduced until any Award award or payment therefor shall have been actually received and applied by Lender, Lender (after the deduction of deducting any expenses of collection, including reasonable attorney's fees) to the reduction or discharge of the IndebtednessDebt. Lender shall not be limited to the rate of interest paid on the Award by the condemning authority any such award or payment from a Condemnation but shall be entitled to receive out of the Award such award or payment interest at the rate then applicable under the Note. Borrower shall cause any award or rates provided herein payment payable to Borrower in any Condemnation to be paid directly to Lender. Lender shall apply, at Lender's discretion, any such award or payment (after deducting any expenses of collection, including reasonable attorney's fees) to (x) the reduction or discharge of the Debt (whether or not then due and payable), or (y) the restoration, repair, replacement, or rebuilding of the portion of the Mortgaged Property remaining after such condemnation. No Prepayment Consideration shall be payable solely in connection with such application; provided, however, that notwithstanding the foregoing, if an Event of Default is existing as of the date of the Condemnation, or an event has occurred as of the date of the Condemnation that with notice and/or the passage of time, or both, would constitute an Event of Default hereunder, then any Condemnation awards or proceeds applied to the Debt pursuant to this section shall be subject to the Prepayment Consideration computed in accordance with the terms of the Note. If the Mortgaged Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of any portion thereof is taken by a condemning authoritysuch award or payment, Borrower Lender shall cause Mortgage Borrower to promptly commence and diligently prosecute have the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive said award or payment in an amount sufficient to fully satisfy the Debt.
Appears in 1 contract
Samples: Plastipak Holdings Inc
Condemnation. Borrower shall promptly give Lender Administrative Agent notice of the actual or threatened commencement of any proceeding for the condemnation of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender Administrative Agent copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower Administrative Agent may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, participate in any litigation and settlement discussions in respect thereofsuch proceedings, and Borrower shall from time to time deliver to Lender Administrative Agent all instruments reasonably requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with LenderAdministrative Agent, its attorneys and experts, and reasonably cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness Obligations at the time and in the manner provided for its payment in the Note and in this Agreement Agreement, and the Indebtedness Obligations shall not be reduced until any Award award shall have been actually received and applied by LenderAdministrative Agent, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessObligations. Lender Administrative Agent shall not be limited to the interest paid on the Award award by the condemning authority but shall be entitled to receive out of the Award award interest at the rate or rates provided herein or in the NoteLoan Documents. So long as no Event of Default exists and Borrower is diligently pursuing its rights and remedies with respect to any condemnation claim, Administrative Agent will obtain Borrower’s written consent (such consent not to be unreasonably withheld, conditioned or delayed) before making proof of loss or settling any condemnation claim. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of Section 6.4. If the Mortgage Loan Agreement. Borrower Property is sold, through foreclosure or otherwise, prior to the receipt by Administrative Agent of the award, Administrative Agent shall cause Mortgage Borrower to pay all costs of Restoration have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive the award, or a portion thereof sufficient to pay the Obligations.
Appears in 1 contract
Condemnation. Borrower shall (or shall cause Mortgage Borrower to) promptly give Lender notice of the actual or threatened commencement of any proceeding for the condemnation Condemnation of the any Individual Property (or any portion thereof) of which Borrower has knowledge and shall (or shall cause Mortgage Borrower to to) deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower Lender may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, participate in any litigation and settlement discussions in respect thereofsuch proceedings, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, shall cause Mortgage Borrower to to, at Borrower’s or Mortgage Borrower’s expense, diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness Debt shall not be reduced until any Award Net Liquidation Proceeds After Debt Service shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessDebt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award Net Liquidation Proceeds After Debt Service interest at the rate or rates provided herein or in the Note. If the any Individual Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the any Individual Property (or any portion thereof) and otherwise comply with the applicable provisions of Section 7.4 of the Mortgage Loan Agreement (provided, that, such diligent prosecution of the completion of the Restoration shall be conditioned upon Mortgage Borrower’s receipt of any Net Proceeds (as defined in the Mortgage Loan Agreement) to the extent that Mortgage Borrower is entitled to such Net Proceeds (as defined in the Mortgage Loan Agreement) pursuant to Section 7.4 of the Mortgage Loan Agreement). Borrower Subject to the rights of Mortgage Lender under the Mortgage Loan Documents and the rights of Mezzanine A Lender under the Mezzanine A Loan Documents, if the Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall cause Mortgage Borrower to pay all costs of Restoration have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.
Appears in 1 contract
Samples: Mezzanine B Loan Agreement (Morgans Hotel Group Co.)
Condemnation. Borrower shall promptly give Lender written notice of the actual or threatened commencement of any proceeding for the exercise of a right of condemnation or eminent domain affecting all or any part of the Mortgaged Property of which Borrower has knowledge (each such event being hereafter referred to as a "Condemnation"), and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedingsCondemnation. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including including, but not limited to to, any transfer made in lieu of or in anticipation of the exercise of such taking)) of all or any part of the Mortgaged Property through a Condemnation, Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in Note, Loan Agreement, Guaranty, this Agreement Mortgage, and the Indebtedness Other Security Documents, and the Debt shall not be reduced until any Award award or payment therefor shall have been actually received and applied by Lender, Lender (after the deduction of deducting any expenses of collection, including reasonable attorneys' fees) to the reduction or discharge of the IndebtednessDebt. Lender shall not be limited to the rate of interest paid on the Award by the condemning authority any such award or payment from a Condemnation but shall be entitled to receive out of the Award such award or payment interest at the rate or rates provided herein or in then applicable under the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage any award or payment payable to Borrower in any Condemnation to pay all costs be paid directly to Lender. Lender shall apply, in Lender's discretion, any such award or payment (after deducting any expenses of Restoration collection, including reasonable attorneys' fees) to (a) the reduction or discharge of the Debt (whether or not then due and payable), or (b) the restoration, repair, replacement or rebuilding of the portion of the Mortgaged Property remaining after the Condemnation; provided, however, if no Event of Default, or event which with the giving of notice or passage of time, or both, would give rise to an Event of Default, has occurred as of the date of the Condemnation or as of the date any award or payment are to be paid or disbursed to Borrower, the Condemnation causes damage of $250,000 or less. Lender has determined, in its reasonable discretion, that the cost of restoration, repair, and rebuilding will be equal to or less than the amount of Condemnation award and other funds deposited by Borrower with Lender for restoration, repair, and rebuilding the Mortgaged Property, then all awards and payments from such Condemnation shall be paid to Lender, provided, however, that so long as no Event of Default exists and subject to the requirements set forth herein. Lender shall disburse such amounts of Condemnation award (after deduction for Xxxxxx's costs are covered and expenses of collection) as Lender reasonably deems necessary for the repair or replacement of the Mortgaged Property, with any balance remaining after such disbursement being applied by Lender to the Net Insurance ProceedsDebt in such priority and proportions as Lender deems proper. In the event of a partial Condemnation, Xxxxxxxx agrees to commence promptly the restoration and repair of the remaining Mortgaged Property to as nearly as possible the same condition as existed prior to such taking, and to prosecute diligently to completion such restoration and repair in compliance with plans which must be submitted to and approved in advance by Xxxxxx. If the Mortgaged Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of any such award or payment. Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive said award or payment in an amount sufficient to fully satisfy the Debt.
Appears in 1 contract
Samples: Mortgage, Security Agreement (Cardinal Ethanol LLC)
Condemnation. Borrower shall promptly give Lender ten (10) Business Days’ notice of the actual or threatened commencement of any proceeding for the condemnation Condemnation of all or any portion of the Property or the Condominium Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, Lender may participate in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may any such proceedings (or may cause Mortgage Borrower toi) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may is continuing or (and may cause ii) with respect to any Condemnation in which the Net Proceeds or permit Mortgage Borrower to) settle and compromise the condemnation only with costs of completing the prior written consent of Lender (which consent shall not be unreasonably withheld Restoration are equal to or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereofgreater than $10,000,000, and Borrower shall from time to time deliver to Lender all instruments reasonably requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and and, if Lender is permitted to participate in such proceedings pursuant to the foregoing sentence, shall consult with Lender, its attorneys and experts, and reasonably cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including including, but not limited to to, any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of reasonable out-of-pocket expenses of collection, to the reduction or discharge of the IndebtednessDebt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property (and shall cause the Condominium Board to commence and diligently prosecute the Restoration of any Condominium Property affected by such Condemnation in accordance with the Condominium Documents) and, subject to the terms of the Condominium Documents (with respect to the Condominium Property), otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration Section 5.4, whether or not an Award is available to pay the costs of such costs are covered Restoration. If the Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Net Insurance Proceeds.Award, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or 82
Appears in 1 contract
Samples: Loan Agreement (Alexanders Inc)
Condemnation. 6.4 The Borrower shall promptly give hereby assigns, transfers and sets over unto the Lender notice the entire proceeds of any award or any claim for damages for any of the actual Premises (or threatened commencement any interest therein) taken or damaged by the power of eminent domain or by condemnation. The Lender shall be entitled (but shall not be obligated) to participate in the collection of such proceeds and any proceeding such proceeds shall be first applied to reimburse the Lender for the condemnation of the Property of which Borrower has knowledge all costs and shall cause Mortgage Borrower to deliver to Lender copies of any expenses, including attorneys' fees and all papers served expenses, incurred in connection with the collection of such proceedingsproceeds. Provided The Lender may retain the remainder of such award in payment or reduction of the Loan, whether due or not, and any excess after payment in full of the Loan and all sums due hereunder, shall be returned to the Borrower; provided, however, that the Lender shall hold the proceeds of such award and permit the same to be used to reimburse the Borrower for the cost of the rebuilding or restoration of the Premises in accordance with plans and specifications to be submitted to and approved by the Lender, so long as: (i) such proceeds are sufficient, in the Lender's sole judgment, to complete the rebuilding or restoration of the Premises, or if such proceeds are not sufficient in the Lender's sole judgment, then the Borrower shall have paid from its own funds costs of restoration in the amount of such deficiency or, upon request by the Lender, shall have deposited with the Lender the amount of such deficiency in cash, (ii) in the Lender's sole judgment, the Premises can be fully rebuilt and restored, can be operated on an economically feasible basis and will have a value substantially the same as that existing prior to such taking, (iii) there is no Default or Event of Default has occurred hereunder, and is continuing, (iv) in the event of a condemnation where Lender's sole judgment, the amount rebuilding or restoration can be completed prior to the Maturity Date. If the proceeds are to be used to reimburse the Borrower for rebuilding or restoration, the proceeds of the taking does not exceed award shall be paid out in the Insurance Threshold, Borrower may (same manner as is provided in Article 9 hereof for the payment of insurance proceeds toward the cost of rebuilding or may cause Mortgage Borrower to) settle and compromise such condemnationrestoration. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold payment or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer deposit made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but Borrower under subparagraph (i) above shall be entitled to receive disbursed for the cost of rebuilding or restoration before the Borrower receives any reimbursement out of the Award interest at award. Provided that Lender reasonably determines that the rate Premises has been restored to its full function and value, any surplus which may remain out of said award after payment of such cost of rebuilding or rates provided herein or in restoration shall be paid to any other party entitled thereto. If, however, Lender reasonably determines that the Note. If the Property or any portion thereof is taken by a condemning authorityPremises has not been restored to its full function and value, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration Lender may apply such surplus on account of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance ProceedsLoan.
Appears in 1 contract
Samples: Loan Agreement (Florida Gaming Corp)
Condemnation. Borrower shall promptly give Lender notice of the actual or threatened (in writing) commencement of any proceeding for the condemnation Condemnation of the all or any portion of any Individual Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event Subject to the rights of Default has occurred and is continuingMortgage Lender under the Mortgage Loan Documents, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower Lender may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, participate in any litigation and settlement discussions in respect thereofsuch proceedings, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, diligently prosecute (or cause Mortgage Borrower Owner to diligently prosecute prosecute) any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including including, but not limited to to, any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessDebt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the any Individual Property or any portion thereof is taken by a condemning authority, Borrower shall promptly commence and diligently prosecute the Restoration of such Individual Property (or cause Mortgage Borrower Owner to promptly commence and diligently prosecute the Restoration of the Property such Individual Property) and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration Section 5.4, whether or not an Award is available to pay the costs of such costs are covered Restoration. If such Individual Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Net Insurance ProceedsAward, Lender shall have the right, subject to the rights of Mortgage Lender and whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (W2007 Grace Acquisition I Inc)
Condemnation. Borrower shall promptly give Lender prompt notice of the any actual or threatened commencement Condemnation by any Governmental Authority of all or any proceeding for the condemnation part of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies a copy of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation Condemnation where the amount of the taking does not exceed the Insurance Restoration Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out Condemnation provided that the same is effected in a commercially reasonable and timely manner. In the event of a condemnation Condemnation where the amount of the taking exceeds the Insurance Restoration Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation Condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, thereof and Borrower shall from time to time deliver to Lender all instruments requested by it Lender to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking)Condemnation, Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessAgreement. Lender shall not be limited to the interest paid on the Award by the condemning authority any Governmental Authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authorityany Governmental Authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of Section 5.3. If the Mortgage Loan Agreement. Borrower Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall cause Mortgage Borrower to pay all costs of Restoration have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.
Appears in 1 contract
Condemnation. Borrower shall promptly give Lender notice of the actual or threatened in writing commencement of any proceeding for the condemnation Condemnation of the all or any portion of an Individual Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event Subject to the rights of Default has occurred and is continuingMortgage Lender under the Mortgage Loan Documents, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower Lender may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, participate in any litigation and settlement discussions in respect thereofsuch proceedings, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shallshall (or cause Mortgage Borrower to), at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including including, but not limited to to, any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessDebt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the any Individual Property or any portion thereof is taken by a condemning authority, Borrower shall (or cause Mortgage Borrower to to) promptly commence and diligently prosecute the Restoration of the affected Individual Property and otherwise comply with the applicable provisions of Section 5.4 of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration Agreement whether or not an Award is available to pay the costs of such costs are covered Restoration. If the affected Individual Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Net Insurance ProceedsAward, Lender shall have the right, subject to the rights of Mortgage Lender and whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.
Appears in 1 contract
Samples: First Mezzanine Loan Agreement (Clipper Realty Inc.)
Condemnation. Each Borrower shall promptly give notify Lender notice of and the actual or threatened commencement Collateral Agent of any action or proceeding known to such Borrower relating to any condemnation or other taking, whether direct or indirect, of its Property, or part thereof, and each Borrower shall appear, or cause Tenant to appear, in and prosecute any such action or proceeding unless otherwise directed by Lender or Collateral Agent in writing. During the continuance of a Default or, if Lender or Collateral Agent has made the determination, in its reasonable discretion, that a Borrower is not or is not causing Tenant to be diligently and effectively prosecuting such action or proceeding and, such lack of prosecution could result in a materially adverse effect on the value of its Property, and such non-action continues for the a period of thirty (30) days after Lender or Collateral Agent gives said Borrower notice thereof, then immediately upon written notice to such Borrower of Lender's or Collateral Agent's determination, such Borrower authorizes Lender or Collateral Agent, at Lender's or Collateral Agent's option, as attorney-in-fact for such Borrower, to commence, appear in and prosecute, in Lender's or such Borrower's name, any action or proceeding relating to any condemnation or other taking of the Property of which Borrower has knowledge its Property, whether direct or indirect, and shall cause Mortgage Borrower to deliver to Lender copies of settle or compromise any and all papers served claim in connection with such proceedingscondemnation or other taking. Provided no Event Each Borrower hereby irrevocably appoints each of Default has occurred Lender and is continuingCollateral Agent as its attorney-in-fact (coupled with an interest) for the purposes described in, and as limited by, the immediately preceding sentence. The proceeds of any award, payment or claim for damages, direct or consequential, in connection with the event Properties, or part thereof, or for conveyances in lieu of a condemnation where are hereby assigned to and shall be deposited into the amount Collection Account and applied in the manner set forth in paragraph 4 hereof; subject, however, to the rights of Tenant under the taking does Lease so long as the Tenant is not exceed in default under the Insurance ThresholdLease, Borrower may (and net of any necessary costs of restoration. The foregoing provisions providing for the application of condemnation proceeds to the sums secured by the Security Instruments are agreed to be necessary to prevent an impairment of Lender's or may cause Mortgage Borrower to) settle and compromise Collateral Agent's security resulting from such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely mannertaking. In the event event, however, that any provision hereof providing for the application of a any condemnation where proceeds to the amount indebtedness secured by the Security Instruments is held to be unenforceable, in whole or in part, then all condemnation proceeds not payable to Lender for immediate application to the sums secured by the Security Instruments as the result of such invalidity, shall be applied by Borrowers or Tenant as required by the Leases to the restoration of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided affected Property for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration use of the Property and otherwise comply as contemplated by this Agreement with the balance thereof, if any, first being deposited into the Collection Account for application to additional amounts due under paragraph 6 hereof, if any, which balance shall be held and applied as provided for therein and second, being retained by (or remitted to) the applicable provisions Borrower. Each Borrower agrees to execute such further evidence of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs assignment of Restoration whether any awards, proceeds, damages or not claims arising in connection with such costs are covered by the Net Insurance Proceedscondemnation or taking as Lender or Collateral Agent may reasonably require.
Appears in 1 contract
Condemnation. Borrower Borrowers shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the condemnation Condemnation of the any Property of which Borrower has knowledge or any part thereof and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event Lender may participate in any such proceedings with respect to any Condemnation in which Borrowers’ reasonable estimate (based on any statement of Default has occurred and is continuing, value submitted to the condemning authority or any other reasonable evidence in the event of a condemnation where the amount Lender’s reasonable judgment) of the taking does not exceed Net Proceeds or the Insurance costs of completing the Restoration are equal to or greater than the Restoration Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and applicable Borrower shall from time to time deliver to Lender all instruments reasonably requested by it to permit such participation. Borrower Borrowers shall, at its their expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall shall, to the extent required hereunder, consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including including, but not limited to to, any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower Borrowers shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note Notes and in this Agreement and the Indebtedness Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessDebt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the NoteNotes. If the any Property or any portion thereof is taken by a condemning authority, Borrower Borrowers shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the applicable Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower Section 6.4 hereof, provided, that if (A) Lender is obligated to pay all costs make Net Proceeds available to Borrowers for purposes of Restoration in accordance with Section 6.4 hereof, (B) Lender has received such Net Proceeds, and (C) Lender has not made such Net Proceeds available to Borrowers, then Borrowers shall not be obligated to repair and restore such Property unless and until such Net Proceeds are made available to Borrowers. If such Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall have the right, whether or not such costs are covered by a deficiency judgment on either of the Net Insurance ProceedsNotes shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.
Appears in 1 contract
Condemnation. Borrower If, subsequent to the date hereof and prior to the Closing Date, any proceeding, judicial, administrative or otherwise, which shall promptly give Lender notice relate to the proposed taking of all or any substantial portion of the Real Property by condemnation or eminent domain or any action in the nature of eminent domain, or the taking or closing of any right of access to the Real Property, is instituted or commenced, Company shall have the right and option to terminate this Agreement as to all properties comprising the Property if the cost to restore the Property exceeds $20,000,000.00; otherwise, to terminate this Agreement only as to such properties which have been taken or condemned by giving Contributor written notice to such effect within ten (10) days after actual receipt of written notification of any such occurrence or threatened occurrences. Failure to give such notice within such time shall be conclusive evidence that Company has waived the option to terminate by reason of the occurrence or occurrences of which it has received notice, and Company shall be credited with or be assigned all Contributor's right to any proceeds therefrom. Contributor hereby agrees to furnish Company written notification in respect to any such proceedings within five (5) days of Contributor's receipt of any such written notification or commencement of the institution of such proceedings. Should Company be entitled to elect to so terminate this Agreement and does, in fact, so terminate this Agreement, in the case of such termination as to all Properties the Deposit (less $137,500.00, which sum shall be retained by Contributor), and any proceeding for earnings thereon, shall be returned forthwith to Company, and the condemnation of the Property of which Borrower has knowledge and parties hereto shall cause Mortgage Borrower to deliver to Lender copies of be released from any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuingfurther obligations hereunder, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in case of termination as to such Property which has been taken or condemned, the Note Purchase Price shall be reduced by the amount allocated to such property on Schedule 10, and in the parties shall make any other adjustments as agreed upon. If the Closing Date is less than ten (10) days following the last day on which Company is entitled to elect to terminate this Agreement, then the closing shall be delayed until Company makes such election. Notwithstanding the foregoing, if such proceeding by way of condemnation or eminent domain shall be "insubstantial" Company shall not have the right to terminate this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled credited with or be assigned all Contributor's right to receive out any proceeds therefrom. An "insubstantial" proceeding shall be one which (i) does not relate to the taking or closing of any right of access to the Real Property, (ii) affects only the perimeter of the Award interest at Real Property and does not involve more than the rate or rates provided herein or equivalent of $500,000.00 in value, (iii) does not give rise to the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall right to cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration an acceleration of the loan secured by the Mortgages, (iv) does not involve any relocation of utility facilities serving the Real Property and otherwise comply with the applicable provisions (providing this latter condition shall be deemed deleted if Contributor shall agree to pay any cost of relocation of any of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower same and may use such part of the proceeds of the award allocable thereto for such purpose), and (v) does not give rise to pay all costs a right to terminate any of Restoration whether or not such costs are covered the Leases by the Net Insurance Proceedstenant.
Appears in 1 contract
Condemnation. Borrower shall promptly give Lender notice In the event any portion of the actual Demised Premises is taken by any condemnation or threatened commencement eminent domain proceeding or should the Demised Premises by conveyed in lieu of such a taking and this Lease continues in force as to any proceeding for the condemnation part of the Property Demised Premises, as hereinafter provided, the base monthly rental herein specified to be paid shall be ratably reduced according to the area of the Demised Premises which Borrower has knowledge is actually taken, as of the date of such taking, and TENANT shall cause Mortgage Borrower be entitled to deliver no other consideration by reason of such a taking and any dangers whatsoever suffered by TENANT and occasioned by such taking shall not entitle TENANT to Lender copies of share to any extent in any and all papers served income, rent, awards, or any interest therein whatsoever which may be made in connection with such proceedings. Provided no Event of Default has occurred a taking and is continuingTENANT does hereby relinquish and assign to LANDLORD all TENANT’s rights and equities in and to any such income, in the event of a condemnation where the amount of the taking does not exceed the Insurance Thresholdrent, Borrower awards, or any interest therein provided TENANT may (or may cause Mortgage Borrower to) settle and compromise retain any award compensating it for such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely mannertaking. In the event of a condemnation where partial taking of the amount building, either by condemnation, eminent domain, or conveyance in lieu thereof, either LANDLORD or TENANT may elect to terminate this lease if the remaining area of the building shall not be reasonably sufficient for LANDLORD or TENANT to continue feasible and economical operation of the remaining portion of the building, in the LANDLORD’s or TENANT’s sole discretion. Upon the giving of such notice, this Lease shall terminate on the date of service of such notice, and the rents apportioned to the part of the Demised Premises so taken shall be prorated and adjusted as of the date of the taking exceeds and the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise rents apportioned to the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation remainder of the exercise Demised Premises shall be prorated and adjusted as of such taking)termination date. Should all the Demised Premises be so taken, Borrower this Lease shall continue to pay terminate as of the Indebtedness at the time date of such taking and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but event TENANT shall be entitled to receive out no damages or any consideration by reason of such taking from LANDLORD, except the cancellation and termination of this Lease as of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration date of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceedssaid taking.
Appears in 1 contract
Condemnation. Borrower shall promptly give Lender prompt notice of the any actual or threatened commencement Condemnation by any Governmental Authority of all or any proceeding for the condemnation part of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies a copy of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation Condemnation where the amount of the taking does not exceed the Insurance Threshold$1,500,000, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out Condemnation; provided that the same is effected in a commercially reasonable and timely manner. In the event of a condemnation Condemnation where the amount of the taking exceeds the Insurance Threshold $1,500,000 or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation Condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s 's cost, in any litigation and settlement discussions in respect thereof, thereof and Borrower shall from time to time deliver to Lender all instruments requested by it Lender to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking)Condemnation, Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessAgreement. Lender shall not be limited to the interest paid on the Award by the condemning authority any Governmental Authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authorityany Governmental Authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of Section 5.3. If the Mortgage Loan Agreement. Borrower Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall cause Mortgage Borrower to pay all costs of Restoration have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.
Appears in 1 contract
Condemnation. Borrower shall promptly give Lender Agent prompt notice of the any actual or threatened commencement (in writing) Condemnation by any Governmental Authority of all or any proceeding for the condemnation part of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies Agent a copy of any and all papers served in connection with such proceedings. Provided Subject to the rights of Mortgage Agent, and Mortgage Lenders under the Mortgage Loan Agreement, provided no Event of Default has occurred and is continuing, continuing and in the event of a condemnation Condemnation where the amount value of the taking does not exceed the Insurance ThresholdRestoration Threshold as reasonably determined by Agent, Borrower may (may, or may cause Mortgage Borrower to) , settle and compromise such condemnation. Any such settlement and compromise must be carried out Condemnation; provided that the same is effected in a commercially reasonable and timely manner. In the event of a condemnation Condemnation where the amount value of the taking exceeds the Insurance Threshold Restoration Threshold, in Agent’s reasonable determination, or if an Event of Default then exists, subject to the rights of Mortgage Agent, and Mortgage Lenders under the Mortgage Loan Agreement, Borrower may (and may may, or cause or permit Mortgage Borrower to) , settle and compromise the condemnation Condemnation only with the prior written consent of Lender Agent (which consent shall not be unreasonably withheld or delayed) and Lender Agent shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, thereof and Borrower shall from time to time deliver to Lender Agent all instruments reasonably requested by it Agent to permit such participation. Borrower shallshall cause Mortgage Borrower to, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with LenderAgent, its attorneys and experts, and reasonably cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking)Condemnation, Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, Agreement. Subject to the reduction or discharge rights of Mortgage Agent, and Mortgage Lenders under the Indebtedness. Lender Mortgage Loan Agreement, Agent and Lenders shall not be limited to the interest paid on the Award by the condemning authority any Governmental Authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authorityany Governmental Authority, Borrower shall promptly cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of Section 5.3. Subject to the rights of Mortgage Agent and Mortgage Lenders under the Mortgage Loan Agreement. Borrower Documents, if the Property is sold, through foreclosure or otherwise, prior to the receipt by Agent of the Award, Agent and Lenders, as applicable, shall cause Mortgage Borrower to pay all costs of Restoration have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Black Creek Diversified Property Fund Inc.)
Condemnation. Borrower and Equity Owner (as applicable) shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the condemnation Condemnation of the any Individual Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event Subject to the rights of Default has occurred and is continuingMortgage Lender under the Mortgage Loan Agreement, Lender may participate in any such proceedings (subject to the event applicable Condominium Documents) in which the Award or the costs of a condemnation where completing the amount Restoration are equal to or greater than the larger of (x) five percent (5%) of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount Allocated Loan Amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may applicable Individual Property and (and may cause or permit Mortgage Borrower toy) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof$1,000,000, and Borrower and Equity Owner (as applicable) shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shallshall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to), as applicable, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and reasonably cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including including, but not limited to to, any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessDebt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the any Individual Property or any portion thereof is taken by a condemning authority, Borrower shall (or shall cause Mortgage Borrower to to) and Equity Owner shall (or shall cause Operating Lessee to), as applicable, promptly commence and diligently prosecute the Restoration of the applicable Individual Property and otherwise comply with the applicable provisions of Section 6.4 of the Mortgage Loan Agreement. Borrower If the Individual Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall cause Mortgage Borrower to pay all costs of Restoration have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.
Appears in 1 contract
Condemnation. Borrower Borrower, after obtaining actual knowledge thereof, shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the condemnation Condemnation of all or any portion of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served to Borrower in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower Lender may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, participate in any litigation and settlement discussions in respect thereofsuch proceedings, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and, to the extent Lender’s, Ground Tenant’s and Borrower’s interests are aligned, shall reasonably consult with Lender, its attorneys and experts, and reasonably cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including including, but not limited to to, any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessDebt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property is sold, through foreclosure or any portion thereof is taken otherwise, prior to the receipt by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration Lender of the Property and otherwise comply with Award, Lender shall have the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt. Notwithstanding the foregoing, all Awards shall be disbursed and allocated between Borrower and Ground Tenant as set forth in the Ground Lease.
Appears in 1 contract
Condemnation. Borrower shall promptly give Lender notice of the actual or threatened in writing commencement of any proceeding for the condemnation in respect of the Property of which Borrower has knowledge Condemnation, and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no For Condemnations in which the Net Proceeds or the costs of completing the Restoration are reasonably expected to exceed the Net Proceeds Threshold (and otherwise if an Event of Default has occurred and is continuing), in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower Lender may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, participate in any litigation and settlement discussions in respect thereofsuch proceedings, and Borrower shall from time to time deliver to Lender all instruments reasonably requested by it Lender to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and for Condemnations in which the Net Proceeds or the costs of completing the Restoration are reasonably expected to exceed the Net Proceeds Threshold (and otherwise if an Event of Default has occurred and is continuing), shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including including, but not limited to to, any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay perform the Indebtedness Obligations at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness other Loan Documents and the Obligations shall not be reduced until any Award Condemnation Proceeds shall have been actually received and applied by Lender, after the deduction of expenses of collection, Lender to the reduction or discharge of the IndebtednessObligations. Lender shall not be limited to the interest paid on the Award award by the condemning authority applicable Governmental Authority but shall be entitled to receive out of the Award award interest at the rate or rates provided herein or in the Note. If the any Individual Property or any portion thereof is taken by a condemning authorityGovernmental Authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of Section 6.2(E). If the Mortgage Loan Agreement. Borrower applicable Individual Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the award, Lender shall cause Mortgage Borrower to pay all costs of Restoration have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive the award, in each case if and to the extent not previously applied to the Obligations or Restoration of the Individual Property.
Appears in 1 contract
Condemnation. Borrower shall promptly give Lender notice Subject to the terms and conditions of the actual Declaration, Mortgagee may, at its option, in its own name, as collateral agent for Lenders, (a) appear or threatened commencement of proceed in any proceeding for the condemnation of the Property of which Borrower has knowledge proceeding, and shall cause Mortgage Borrower to deliver to Lender copies of (b) make any and all papers served in connection with such proceedings. Provided compromise or settlement thereof, provided that so long as no Event of Default has occurred exists and is continuingMortgagor promptly prosecutes any compromise or settlement thereof, Mortgagor shall control any compromise or settlement proceeding, with the result thereof being subject to Mortgagee’s prior express written approval, which approval shall not be unreasonably withheld. If an Event of Default shall exist, Mortgagor shall not exercise any right pursuant to Article 13 of the Declaration, without Mortgagee’s prior express written consent, and Mortgagor shall take all action and execute such agreements as shall be necessary to settle or compromise any such claim, as approved by Mortgagee, in the event of a condemnation where the amount its sole discretion. Mortgagor shall give Mortgagee prompt written notice of the taking does not exceed initiation of any condemnation proceeding, and a copy of every pleading, notice and other items served in any condemnation proceeding. Mortgagor hereby assigns, transfers and sets over unto Mortgagee all of Mortgagor’s rights, title, [MORTGAGE, ASSIGNMENT OF LEASES, SECURITY AGREEMENT AND FIXTURE FILING] ING No. 28193 GECC No. 690081960 and interests in the Insurance Threshold, Borrower may (entire proceeds of any award or may cause Mortgage Borrower to) settle and compromise such any claim for damages for any of the Premises taken or damaged under the power of eminent domain or by condemnation. Subject to the terms and conditions of the Declaration, Mortgagee may elect to apply the proceeds of the award upon or in reduction of the Indebtedness, whether due or not, in accordance with the terms of the Notes, or to make said proceeds available for restoration or rebuilding of the Premises. Mortgagee may elect to apply any “Excess Award” (as such term is defined in the Declaration) upon or in reduction of the Indebtedness, whether due or not, in accordance with the terms of the Notes, or to make said proceeds available for further restoration or rebuilding of the Premises. Any “Award” (as such settlement term is defined in the Declaration) shall be deposited with the Depositary and compromise must used to repair and restore the Premises in accordance with the terms of the Declaration. Awards shall be carried out deposited with the Depository and used for the repair and restoration of the Premises in accordance with the provisions of the Declaration; provided that, (i) Mortgagor shall not approve the appointment of any Depository, without the prior express written consent of Mortgagee and (ii) Mortgagee shall cause all Awards dispersed by the Depository to be funded through a commercially reasonable construction escrow with the Title Insurer, subject to Mortgagee’s prior express written approval, such approval not be unreasonably withheld, conditioned, or delayed, which escrow agreement shall require the escrowee thereunder to provide current dated endorsement(s) to the Mortgagee’s title insurance policy, free and timely mannerclear of all liens and encumbrances. In the event of a condemnation where Condemnation, pursuant to the amount terms of the taking exceeds Declaration, Mortgagor shall have the Insurance Threshold or if an Event right to enter into contracts for repair and restoration of Default then exists, Borrower may (the Premises and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only Hotel Property in accordance with the provisions of the Declaration; provided that Mortgagor shall not exercise such right to enter into any contract for the repair or restoration of the Premises or the Hotel Property, without the prior express written consent of Lender Mortgagee: (1) if such construction contract has a price in excess of the Award deposited with the Depository, and/or (2) if the cost of rebuilding, repairing or restoring of the Improvements and the Hotel Property exceeds the sum of Two Million and 00/100 ($2,000,000.00) Dollars, until Mortgagee has approved in writing the form of the construction contract and the plans and specifications for the proposed rebuilding and restoration, which consent approval shall not be unreasonably withheld or delayedwithheld. Mortgagor shall not permit any contractor to commence work until funds have been deposited with the Depository (as required pursuant to the Declaration) and Lender shall have in an amount equal to the opportunity to participate, at Borrowermaximum construction price under such contractor’s costconstruction contract. In the event that Mortgagee elects, in any litigation Mortgagee’s sole and settlement discussions in respect thereofabsolute discretion, and Borrower shall from time to time deliver make Excess Proceeds or other Awards payable to Lender all instruments requested by it Mortgagor pursuant to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower the Declaration available to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in reimburse Mortgagor for the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation cost of the exercise rebuilding or restoration of the Improvements, such taking), Borrower proceeds shall continue to pay the Indebtedness at the time and be made available in the manner provided for its payment and under the conditions that Mortgagee may require. In any event, the Improvements shall be restored or rebuilt in accordance with the Note and in this Agreement Declaration and the Indebtedness shall not plans and specifications to be reduced until submitted to and approved by Mortgagee prior to commencement of any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction building or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Noterestoration. If the Property proceeds are made available by Mortgagee to reimburse Mortgagor for the cost of said rebuilding or restoration, any portion thereof is taken by a condemning authority, Borrower surplus which may remain out of said award after payment of such cost of rebuilding or restoration shall cause Mortgage Borrower to promptly commence and diligently prosecute at the Restoration option of Mortgagee be applied on account of the Property and otherwise comply with Indebtedness or be paid to any party entitled thereto. Interest shall be allowed to Mortgagor on the applicable provisions proceeds of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered any award held by the Net Insurance ProceedsMortgagee.
Appears in 1 contract
Samples: Security Agreement and Fixture (Prime Group Realty Trust)
Condemnation. Borrower shall promptly give Lender written notice of the actual or threatened commencement of any xxx xondemnation or eminent domain proceeding for the condemnation of affecting the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any No taking by any public or quasi-public quasi_public authority through condemnation eminent domain or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking)) shall limit or otherwise affect Borrower's obligations under this Security Instrument or any of the other Loan Documents to which Borrower is a party. Lender is authorized, Borrower shall continue at its option, to pay the Indebtedness at the time commence, appear in, and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied prosecute, through counsel selected by Lender, after in its own or in Borrower's name, any action or proceedinx xxxxting to any such condemnation, provided that, if Lender's determines that the deduction compensation, award, or payment or rxxxxx to be collected from such action or proceeding will likely be less than $100,000.00, then Lender shall not unreasonably withhold its consent to permitting Borrower the sole right to prosecute any such action or proceeding. If an Event of expenses Default exists, Lender shall have the sole and exclusive right to compromise or settle any claim for compensation. All such compensation, awards, damages, claims, rights of collectionaction, and proceeds and the right thereto are hereby assigned by Borrower to Lender, and Lender is authorized, at its option, to collect and receive all such compensation, awards, or damages and to give proper receipts and acquittances therefor without any obligation to question the reduction amount of any such compensation, awards, or discharge damages. Lender will be entitled to all compensation, awards, and other payments or relief therefor; provided that if the amount of such compensation, awards, and other payments or relief is equal to or less than the IndebtednessCasualty Benchmark, Borrower may collect same. Lender shall not be limited to the interest paid on the Award award by the condemning authority but shall be entitled to receive out of the Award award interest at the rate or rates provided herein or and in the Note. Any such compensation, awards, and other payments received by Lender, after deducting therefrom all of Lender's expenses incurrxx xx the collection and administration of such sums, including reasonable attorney's fees actually incurred, shall be retained and applied by Lender toward the payment of the Secured Obligations, whether or not then due and payable, in such order, priority, and proportions as Lender in its discretion shall deem proper or, at the discretion of Lender, the same shall be paid, either in whole or in part, to Borrower. If the Property is sold, through foreclosure or any otherwise, prior to the receipt by Lender of such award or payment, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive said award or payment, or a portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower sufficient to promptly commence and diligently prosecute pay the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan AgreementSecured Obligations. Borrower shall file and prosecute or cause Mortgage to be filed and prosecuted its claim or claims for any such award or payment in good faith and with due diligence and cause the same to be paid over to Lender, and hereby irrevocably authorizes and empowers Lender, in the name of Borrower or otherwise, to pay collect and receive any such award or payment and to file and prosecute such claim or claims, and although it is hereby expressly agreed that the same shall not be necessary in any event, Borrower shall, upon demand of Lender, make, execute and deliver any and all costs assignments and other instruments sufficient for the purpose of Restoration whether assigning any such award or not such costs are covered by the Net Insurance Proceedspayment to Lender, free and clear of any encumbrances of any kind or nature whatsoever.
Appears in 1 contract
Samples: And Security Agreement (Roberts Realty Investors Inc)
Condemnation. Borrower shall promptly give immediately notify Lender notice of the actual or threatened commencement of any proceeding for the condemnation of the Property of which notices, attempts or other action relating to a condemnation, dedication or other conveyance to a Governmental Unit. Borrower has knowledge shall do all acts and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuingthings, at Borrower's expense, as may be necessary or appropriate, in the event judgment of Lender, to enable Lender to receive all condemnation, settlement, eminent domain or similar awards or proceeds resulting from a condemnation where the amount of the taking does not exceed the Insurance Threshold, transfer in lieu thereof. Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver hereby assigns to Lender all instruments requested by it of its right and power to permit such participation. Borrower shallcompromise, at its expensesettle, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them accept or otherwise participate in the carrying on or defense determination of any such proceedings. Notwithstanding any taking by any public claims, amounts or quasi-public authority through condemnation sums; provided, however, Lender agrees to allow Borrower to compromise, settle, accept or otherwise (including but participate in the termination of any such claims, amounts or sums as long as Borrower is not limited in Default or Potential Default hereunder and communicates with and obtains Lender's approval prior to the agreement as to any transfer made in lieu of or in anticipation of award. Lender, upon receipt, shall disburse the exercise of such taking), Borrower shall continue condemnation proceeds to pay restore and repair the Indebtedness at Properties pursuant to the time and in the manner provided normal procedures for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied disbursing funds under construction loans then established by Lender; provided, after however, that (i) if there is a Default or Potential Default hereunder, or (ii) if the deduction condemnation proceeds (plus any other funds readily available for or on behalf of expenses of collectionBorrower) are not adequate to restore the Properties, or (iii) it is not commercially reasonable, as determined in Lender's reasonable discretion, to restore and repair the reduction or discharge of Properties, then Lender may, in its sole discretion, use such proceeds to reduce the Indebtedness. outstanding Obligations, except if there is an uncured Potential Default which Lender reasonably expects to be cured within the applicable cure period, then Lender shall not be limited to use such proceeds against the interest paid on Obligations until the Award by the condemning authority but shall be entitled to receive out end of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceedscure period.
Appears in 1 contract
Samples: Loan and Security Agreement (Gundle SLT Environmental Inc)
Condemnation. Borrower Borrowers shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the condemnation Condemnation of the any Property of which Borrower has knowledge or any part thereof and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event Lender may participate in any such proceedings with respect to any Condemnation in which Borrowers’ reasonable estimate (based on any statement of Default has occurred and is continuing, value submitted to the condemning authority or any other reasonable evidence in the event of a condemnation where the amount Lender’s reasonable judgment) of the taking does not exceed Net Proceeds or the Insurance costs of completing the Restoration are equal to or greater than the Restoration Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and applicable Borrower shall from time to time deliver to Lender all instruments reasonably requested by it to permit such participation. Borrower Borrowers shall, at its their expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall shall, to the extent required hereunder, consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including including, but not limited to to, any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower Borrowers shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessDebt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the any Property or any portion thereof is taken by a condemning authority, Borrower Borrowers shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the applicable Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower Section 6.4 hereof, provided, that if (A) Lender is obligated to pay all costs make Net Proceeds available to Borrowers for purposes of Restoration in accordance with Section 6.4 hereof, (B) Lender has received such Net Proceeds, and (C) Lender has not made such Net Proceeds available to Borrowers, then Borrowers shall not be obligated to repair and restore such Property unless and until such Net Proceeds are made available to Borrowers. If such Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance Proceeds.Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt. 190
Appears in 1 contract
Condemnation. Borrower shall promptly give Lender written notice of the actual or threatened commencement of any condemnation or eminent domain proceeding for affecting the condemnation of the Mortgaged Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any No taking by any public or quasi-public authority through condemnation eminent domain or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking)) shall limit or otherwise affect Borrower's obligations under the Loan Agreement, this Security Instrument, or any of the other Loan Documents to which Borrower shall continue is a party. Lender is authorized, at its option, to pay the Indebtedness at the time commence, appear in, and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied prosecute, through counsel selected by Lender, after in its own or in Borrower's name, any action or proceeding relating to any such condemnation, provided that, if Lender's determines that the deduction compensation, award, or payment or relief to be collected from such action or proceeding will likely be less than the Casualty Benchmark (as defined in Section 3.07 below), then Lender shall not unreasonably withhold its consent to permitting Borrower the sole right to prosecute any such action or proceeding. If an Event of expenses Default exists, Lender shall have the sole and exclusive right to compromise or settle any claim for compensation. All such compensation, awards, damages, claims, rights of collectionaction, and proceeds and the right thereto are hereby assigned by Borrower to Lender, and Lender is authorized, at its option, to collect and receive all such compensation, awards, or damages and to give proper receipts and acquittances therefor without any obligation to question the reduction amount of any such compensation, awards, or discharge damages. Lender will be entitled to all compensation, awards, and other payments or relief therefor; provided that if the amount of such compensation, awards, and other payments or relief is equal to or less than the IndebtednessCasualty Benchmark, Borrower may collect same. Lender shall not be limited to the interest paid on the Award award by the condemning authority but shall be entitled to receive out of the Award award interest at the rate or rates provided herein or and in the Note. Any such compensation, awards, and other payments received by Lender, after deducting therefrom all of Lender's expenses incurred in the collection and administration of such sums, including reasonable attorney's fees actually incurred, shall be applied and disbursed in accordance with Section 3.07 below. If the Mortgaged Property is sold, through foreclosure or any otherwise, prior to the receipt by Lender of such award or payment, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive said award or payment, or a portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower sufficient to promptly commence and diligently prosecute pay the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan AgreementSecured Obligations. Borrower shall file and prosecute or cause Mortgage to be filed and prosecuted its claim or claims for any such award or payment in good faith and with due diligence and cause the same to be paid over to Lender, and hereby irrevocably authorizes and empowers Lender, in the name of Borrower or otherwise, to pay collect and receive any such award or payment and to file and prosecute such claim or claims, and although it is hereby expressly agreed that the same shall not be necessary in any event, Borrower shall, upon demand of Lender, make, execute and deliver any and all costs assignments and other instruments sufficient for the purpose of Restoration whether assigning any such award or not such costs are covered by the Net Insurance Proceedspayment to Lender, free and clear of any encumbrances of any kind or nature whatsoever.
Appears in 1 contract
Samples: Trust and Security Agreement (Wells Real Estate Investment Trust Inc)
Condemnation. Borrower shall promptly give, and cause IDOT Guarantor to give Lender notice of the actual or threatened commencement of any proceeding for the condemnation Condemnation of the any Individual Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower Lender may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, participate in any litigation and settlement discussions in respect thereofsuch proceedings, and Borrower shall from time to time deliver, and cause IDOT Guarantor to deliver to Lender all instruments requested by it Lender to permit such participation. Borrower shall, at its expense, diligently prosecute, and cause Mortgage Borrower IDOT Guarantor to diligently prosecute prosecute, any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including including, but not limited to to, any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay perform the Indebtedness Obligations at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness other Loan Documents and the Outstanding Principal Balance shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessDebt without prepayment penalty. Lender shall not be limited to the interest paid on the Award by the condemning authority applicable Governmental Authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authorityGovernmental Authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute prosecute, and cause IDOT Guarantor to commence and diligently prosecute, the Restoration of the applicable Individual Property and otherwise comply with the applicable provisions of Section 6.4. If any Individual Property is sold, through foreclosure or otherwise, prior to the Mortgage Loan Agreement. Borrower receipt by Lender of the Award, Lender shall cause Mortgage Borrower to pay all costs of Restoration have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.
Appears in 1 contract
Condemnation. Borrower shall promptly give Lender prompt notice of the any actual or threatened commencement Condemnation by any Governmental Authority of all or any proceeding for the condemnation part of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies a copy of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, continuing and in the event of a condemnation Condemnation where the amount value of the taking does not exceed the Insurance Restoration Threshold, in Lender’s reasonable determination, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out Condemnation; provided that the same is effected in a commercially reasonable and timely manner. In the event of a condemnation Condemnation where the amount value of the taking exceeds the Insurance Threshold Restoration Threshold, in Lender’s reasonable determination, or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation Condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, thereof and Borrower shall from time to time deliver to Lender all instruments requested by it Lender to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking)Condemnation, Borrower Bxxxxxxx shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessAgreement. Lender shall not be limited to the interest paid on the Award by the condemning authority any Governmental Authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authorityany Governmental Authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of Section 5.3. If the Mortgage Loan Agreement. Borrower Property is sold, through foreclosure or otherwise, prior to the receipt by Lxxxxx of the Award, Lender shall cause Mortgage Borrower to pay all costs of Restoration have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.
Appears in 1 contract
Condemnation. Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the condemnation Condemnation of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, Lender may participate in the event any such proceedings that relate to a Condemnation of a condemnation where the amount material portion of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereofProperty, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and in the case of such proceedings that relate to a Condemnation of a material portion of the Property, shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation Condemnation or otherwise (including including, but not limited to to, any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessDebt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If any portion of the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property pursuant to Section 6.4 hereof and otherwise comply with the applicable provisions of Section 6.4 hereof. If the Mortgage Loan Agreement. Borrower Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall cause Mortgage Borrower to pay all costs of Restoration have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.
Appears in 1 contract
Condemnation. Borrower If, prior to Closing, any governmental authority or other entity having condemnation authority shall promptly give Lender institute an eminent domain proceeding or take any steps preliminary thereto (including the giving of any direct or indirect notice of intent to institute such proceedings) with regard to a "Material Portion" of the actual Land and Improvements (as defined below), and the same is not dismissed prior to the Closing Date, CBL/OP shall be entitled, as CBL/OP's sole remedy, to terminate this Agreement upon written notice to Property Owner (a) within 15 Business Days following notice by Property Owner to CBL/OP of such condemnation or the threatened commencement condemnation or (b) on the Closing Date, whichever occurs first. If CBL/OP does not terminate this Agreement pursuant to the preceding sentence, CBL/OP shall be conclusively deemed to have elected to accept such condemnation and waives any right to terminate this Agreement as a result thereof. For purposes of any proceeding this Section 11.1, a "Material Portion" shall mean that portion of the Land and Improvements which, if taken or condemned, would cause the Eastland Mall to be in violation of the current applicable zoning laws with regards to required number of parking spaces for the condemnation Eastland Mall. If CBL/OP elects to terminate this Agreement under this Section 11.1, Escrow Agent or Property Owner, as applicable, shall return the Deposit to the CBL/OP and neither party shall have any further rights or obligations under this Agreement, except for the CBL/OP's Surviving Obligations. If CBL/OP waives (or is deemed to have waived) the right to terminate this Agreement as a result of such a condemnation, then despite such condemnation, Property Owner and CBL/OP shall proceed to Closing in accordance with the terms of this Agreement with no reduction in the Purchase Price, and Property Owner shall assign to CBL/OP at Closing, as part of the Intangible Property, all of Property of which Borrower has knowledge Owner's right, title and shall cause Mortgage Borrower interest in and to deliver all proceeds resulting or to Lender copies of result from said condemnation and give a credit for any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the proceeds received prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance ProceedsClosing.
Appears in 1 contract
Condemnation. Borrower Mortgagor shall promptly give Lender prompt notice of the any actual or threatened commencement Condemnation by any Governmental Authority of all or any proceeding for the condemnation part of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies a copy of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation Condemnation where the amount of the taking does not exceed $100,000.00 and the Insurance Thresholdland so taken is located along the perimeter or periphery of the Land, Borrower Mortgagor may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out Condemnation; provided that the same is effected in a commercially reasonable and timely manner. manner In the event of a condemnation Condemnation where the amount of the taking exceeds the Insurance Threshold $100,000.00 or if an Event of Default then existsexists or if the portion of the Land taken is located other than along the perimeter or periphery of the Land, Borrower Mortgagor may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation Condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at BorrowerMortgagor’s cost, in any litigation and settlement discussions in respect thereof, thereof and Borrower Mortgagor shall from time to time deliver to Lender all instruments requested by it Lender to permit such participation. Borrower Mortgagor shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking)Condemnation, Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessAgreement. Lender shall not be limited to the interest paid on the Award by the condemning authority any Governmental Authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authorityany Governmental Authority, Borrower Mortgagor shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of Section 6.3. If the Mortgage Loan Agreement. Borrower Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall cause Mortgage Borrower to pay all costs of Restoration have the right, whether or not such costs are covered by a deficiency judgment on the Net Insurance ProceedsNote shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.
Appears in 1 contract
Samples: Loan Agreement
Condemnation. Borrower shall promptly give Lender prompt notice of the any actual or threatened commencement Condemnation by any Governmental Authority of all or any proceeding for the condemnation part of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies a copy of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation Condemnation where the amount of the taking does not exceed the Insurance Restoration Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out Condemnation; provided that the same is effected in a commercially reasonable and timely manner. In the event of a condemnation Condemnation where the amount of the taking exceeds the Insurance Restoration Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation Condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s 's cost, in any litigation and settlement discussions in respect thereof, thereof and Borrower shall from time to time deliver to Lender all instruments requested by it Lender to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking)Condemnation, Borrower shall continue to pay the Indebtedness Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the IndebtednessAgreement. Lender shall not be limited to the interest paid on the Award by the condemning authority any Governmental Authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authorityany Governmental Authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of Section 5.3. If the Mortgage Loan Agreement. Borrower Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceeds.have
Appears in 1 contract
Samples: Loan Agreement (Hartman Short Term Income Properties XX, Inc.)
Condemnation. Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the condemnation of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of any actual or threatened taking, pursuant to the power of eminent domain, of all or any portion of a condemnation where Parcel or any proposed sale in lieu thereof (in each case, a "TAKING"), Seller or Buyer, as the amount case may be, shall give written notice thereof to the other promptly after such Person learns or receives notice thereof. If all or any Significant Portion (as defined below) of the taking exceeds Parcel is, or is to be, the Insurance Threshold subject of such Taking (or if an Event of Default then existsis Taken), Borrower may Buyer shall have the right to terminate its right and obligation under this Agreement to purchase such Parcel only (and may cause such Parcel shall then not be sold or permit Mortgage Borrower totransferred to Buyer at the Closing and the Purchase Price shall be appropriately adjusted to deduct therefrom the portion of the Purchase Price allocated to such Parcel pursuant to the Summary Sheet) by delivery of a written termination notice to Seller no later than ten (10) business days after the Buyer first discovers or learns about the Taking. If Buyer elects not to terminate its right and obligation to purchase such Parcel under this Agreement, all proceeds, awards and other payments arising out of such Taking (actual or threatened) shall be paid or assigned, as applicable, to Buyer at Closing, and there shall be no credit to or adjustment of the Purchase Price allocable to such Parcel or otherwise. Seller will not settle and or compromise the condemnation only with the any such proceeding without Buyer's prior written consent of Lender (which consent shall will not be unreasonably withheld withheld, conditioned or delayed). As used herein, a Taking of a "SIGNIFICANT PORTION" of a Parcel shall mean (i) the permanent Taking of a legally required driveway, if such driveway is the sole or material means of vehicular ingress and Lender shall have the opportunity to participateegress into and from such Parcel, at Borrower’s cost, in (ii) any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them permanent Taking that results in the carrying on or defense denial of a primary access to such 36 Parcel, (iii) any Taking of any portion of such proceedings. Notwithstanding any taking by any public Parcel for which the applicable governmental entity pays or quasi-public authority through may be reasonably expected to pay a condemnation award or otherwise (including but not limited other compensation to any transfer made in lieu of or in anticipation the owner of the exercise Parcel in excess of such takingtwenty percent (20%) of the then fair market value of the Parcel (as reasonably determined by the insurer providing casualty insurance for the Parcel), Borrower shall continue to pay or (iv) any permanent Taking of any portion of the Indebtedness at Parcel that would materially adversely prevent or interfere with the time and in operation of the manner provided for its payment in Parcel as an eighteen (18) hole golf course. The provisions of this SECTION 7.1 supersede the Note and in this Agreement and the Indebtedness shall not be reduced until provisions of any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, applicable statutory or decisional law with respect to the reduction or discharge subject matter of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceedsthis SECTION 7.1.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Golf Trust of America Inc)
Condemnation. Borrower shall promptly give Lender notice As of the actual date of this Agreement, there is no pending or, to the knowledge of Sellers, threatened condemnation or threatened commencement similar proceeding or special assessment (inclusive of assessments for street widening, repair, or improvement), or change in zoning affecting the Property. Notwithstanding and without limiting the foregoing, (i) if any of the representations or warranties of Sellers that survive Closing contained in this Agreement or in any document or instrument delivered in connection herewith are materially false or inaccurate, or Sellers are in material breach or default of any proceeding for of their obligations under this Agreement that survive Closing, and Purchaser nonetheless closes the condemnation transactions hereunder and purchases the Property, then Sellers shall have no liability or obligation respecting such false or inaccurate representations or warranties or other breach or default (and any cause of action resulting therefrom shall terminate upon the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, Closing) in the event of a condemnation where the amount that either (x) on or prior to Closing, Purchaser shall have had actual knowledge of the taking does not exceed false or inaccurate representations or warranties or other breach or default, or (y) the Insurance Threshold, Borrower may (accurate state of facts pertinent to such false or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out inaccurate representations or warranties or other breach or default was contained in a commercially reasonable and timely manner. In the event of a condemnation where the amount any of the taking exceeds Information furnished or made available to or otherwise obtained by Purchaser, and (ii) to the Insurance Threshold extent the copies of the Leases, the Contracts or if an Event of Default then existsany other Information furnished or made available to or otherwise obtained by Purchaser prior to the date hereof contain provisions or information that are inconsistent with the foregoing representations and warranties, Borrower may Sellers shall have no liability or obligation respecting such inconsistent representations or warranties (and may Purchaser shall have no cause of action or permit Mortgage Borrower toright to terminate this Agreement with respect thereto), and such representations and warranties shall be deemed modified to the extent necessary to eliminate such inconsistency and to conform such representations and warranties to such Leases, Contracts and other Information. References to the “knowledge”, “best knowledge” and/or “actual knowledge” of Sellers or words of similar import shall refer only to the current actual (as opposed to implied or constructive) settle knowledge of Xxxxx X. Xxxxxxxxx and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld construed, by imputation or delayed) and Lender otherwise, to refer to the knowledge of Sellers or any parent, subsidiary or affiliate of Sellers or to any other officer, agent, manager, representative or employee of any Seller or to impose upon Xxxxx X. Xxxxxxxxx any duty to investigate the matter to which such actual knowledge, or the absence thereof, pertains. Notwithstanding anything to the contrary contained in this Agreement, Xxxxx X. Xxxxxxxxx shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participationno personal liability hereunder. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable The provisions of this Section 7.1.1 shall survive the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs Closing for a period of Restoration whether or not such costs are covered by the Net Insurance Proceedsnine (9) months.
Appears in 1 contract
Samples: Contract of Sale (KBS Real Estate Investment Trust III, Inc.)
Condemnation. Borrower shall promptly give Lender notice of In the actual event that all or threatened commencement of any proceeding for the condemnation portion of the Property shall be damaged or taken through condemnation (which term shall include any damage or taking by any governmental authority, quasi-governmental authority, any party having the power of which condemnation, or any transfer by private sale in lieu thereof), or any such condemnation shall be threatened in writing, Mezzanine Borrower has knowledge shall give prompt written notice to Mezzanine Lender. Mezzanine Lender acknowledges that Mortgage Borrower's rights to any condemnation award is subject to the terms of the Loan Agreement (Mortgage). Notwithstanding the foregoing, Mezzanine Borrower may not and shall cause not permit Senior Tier Mezzanine Borrower to permit Mortgage Borrower to deliver settle or compromise any claim, action or proceeding relating to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in the event of a damage or condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with without the prior written consent of Lender (Mezzanine Lender, which consent shall not be unreasonably withheld withheld, delayed or delayed) and Lender shall have the opportunity to participateconditioned; provided, at Borrower’s costfurther, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause that Mortgage Borrower to diligently prosecute may settle, adjust and compromise any such proceedingsclaim, action or proceeding which is of an amount less than $5,000,000 so long as no Default or Event of Default has occurred. Any Excess Proceeds shall be paid to Mezzanine Lender and shall consult with Lenderapplied to the payment of the Obligations (Junior Tier Mezzanine) whether or not then due pursuant to Section 2.3.1(b). In the event that Mortgage Borrower is permitted pursuant to the terms of the Loan Agreement (Mortgage) to reconstruct, its attorneys and experts, and cooperate with them in restore or repair the carrying on or defense Property following a condemnation of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation portion of the exercise of such taking)Property, Borrower the Property shall continue to pay the Indebtedness at the time be promptly and diligently repaired and restored in the manner provided for its payment in and within the Note time periods required by the Loan Agreement (Mortgage), the Leases and in this any other agreements affecting the Property. In the event that Mortgage Borrower is permitted pursuant to the terms of the Loan Agreement and (Mortgage) to elect not to reconstruct, restore or repair the Indebtedness Property following a condemnation of any portion of the Property, the Property shall not be reduced until any Award shall have been actually received and applied by reconstructed, restored or repaired without the prior written consent of Mezzanine Lender, after the deduction of expenses of collectionnot to be unreasonably withheld, to the reduction delayed or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceedsconditioned.
Appears in 1 contract
Samples: Junior Tier Mezzanine Loan and Security Agreement (Maguire Properties Inc)
Condemnation. (a) Borrower shall promptly give notify Lender notice of any action or proceeding relating to any condemnation or other taking, or conveyance in lieu thereof, of all or any part of the actual Mortgaged Property, whether direct or threatened commencement of indirect (a "Condemnation"). Borrower shall appear in and prosecute or defend any action or proceeding relating to any Condemnation unless otherwise directed by Lender in writing. Borrower authorizes and appoints Lender as attorney-in-fact for the condemnation of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver commence, appear in and prosecute, in Lender's or Borrower's name, any action or proceeding relating to Lender copies of any Condemnation and all papers served to settle or compromise any claim in connection with such proceedingsany Condemnation. Provided no Event This power of Default has occurred attorney is coupled with an interest and therefore is continuingirrevocable. However, nothing contained in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, this Section 20 shall require Lender to incur any expense or take any action. Borrower may (or may cause Mortgage Borrower to) settle hereby transfers and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver assigns to Lender all instruments requested by it to permit such participation. right, title and interest of Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, in and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made award or payment with respect to (i) any Condemnation, or any conveyance in lieu of Condemnation, and (ii) any damage to the Mortgaged Property caused by governmental action that does not result in a Condemnation. (b) Lender may apply such awards or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lenderproceeds, after the deduction of Lender's expenses incurred in the collection of collectionsuch amounts, at Lender's option, to the reduction restoration or discharge repair of the Mortgaged Property or to the payment of the Indebtedness, with the balance, if any, to Borrower. Unless Lender otherwise agrees in writing, any application of any awards or proceeds to the Indebtedness shall not be limited extend or postpone the due date of any monthly installments referred to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property , Section 7 of this Instrument or any portion thereof is taken by a condemning authorityCollateral Agreement, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute or change the Restoration amount of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreementsuch installments. Borrower shall cause Mortgage Borrower agrees to pay all costs execute such further evidence of Restoration whether assignment of any awards or not such costs are covered by the Net Insurance Proceedsproceeds as Lender may require.
Appears in 1 contract
Samples: Rents and Security Agreement (Wellsford Real Properties Inc)
Condemnation. The Borrower hereby irrevocably assigns to the Lender any award or payment which becomes payable by reason of any taking of the Mortgaged Property, or any part thereof, whether directly or indirectly or temporarily or permanently, in or by condemnation or other eminent domain proceedings or sale under threat of condemnation (hereinafter called “Taking”). Forthwith upon receipt by the Borrower of notice of the institution of any proceeding or negotiations for a Taking, the Borrower shall give notice thereof to the Lender. The Lender may appear in any such proceedings and participate in any such negotiations and may be represented by counsel. The Borrower, notwithstanding that the Lender may not be a party to any such proceeding, will promptly give to the Lender copies of all notices, pleadings, judgments, determinations and other papers received by the Borrower therein. The Borrower will not enter into any agreement permitting or consenting to the taking of the Mortgaged Property, or any part thereof, or providing for the conveyance thereof in lieu of condemnation, with anyone authorized to acquire the same in condemnation or by eminent domain unless the Lender shall first have consented thereto in writing. All Taking awards shall be adjusted jointly by the Borrower and the Lender. All awards payable as a result of a Taking shall be paid to the Lender, which may, at its option, apply them, after first deducting the Lender’s expenses incurred in the collection thereof, to the payment of the Indebtedness (without prepayment premium), whether or not due and in such order of application as the Lender may determine, or to the repair or restoration of the Mortgaged Property, in the manner as provided in paragraph 10(f) relating to the application of insurance proceeds or in such manner as the Lender may determine. Any application of Taking awards to principal of the Note shall not extend or postpone the due dates of the monthly installments payable under the Note or change the amount of such installments. If the Taking involves a taking of any building or other improvement now or hereafter located on the Land, the Borrower shall proceed, with reasonable diligence, to demolish and remove any ruins and complete repair or restoration of the Mortgaged Property as nearly as possible to its respective size, type and character immediately prior to the Taking, whether or not the condemnation awards are available or adequate to complete such repair or restoration unless the Lender has applied the entire condemnation award to payment of the Indebtedness (without prepayment premium). The Borrower shall promptly give reimburse the Lender notice upon demand for all of the actual or threatened commencement Lender’s expenses (including attorneys’ fees) incurred in the collection of any proceeding for the condemnation of the Property of which Borrower has knowledge awards and shall cause Mortgage Borrower to deliver to Lender copies of any their disbursement in accordance with this paragraph, and all papers served in connection such expenses, together with such proceedings. Provided no Event interest from the date of Default has occurred and is continuing, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness disbursement at the time and in the manner provided for its payment rate stated in the Note and (unless collection of interest from the Borrower at such rate would be contrary to applicable law, in this Agreement and the Indebtedness which event such amounts shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award bear interest at the highest rate or rates provided herein or in which may be collected from the Note. If the Property or any portion thereof is taken Borrower under applicable law) shall be additional amounts secured by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration this Deed of the Property and otherwise comply with the applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance ProceedsTrust.
Appears in 1 contract
Samples: Mortgage and Security Agreement (Craftmade International Inc)
Condemnation. Borrower shall promptly give Lender notice If all or any part of the actual Collateral, or any interest therein or right accruing thereto, is taken as a result of, or in lieu or in anticipation of, the exercise of the right of condemnation or eminent domain, or by reason of the temporary requisition of the use or occupancy of the Mortgaged Property, in any event by any government or quasi-governmental authority, civil or military, or any other party entitled to exercise such powers by law, general or special, or is devalued or otherwise adversely affected by any of the foregoing actions, all proceeds payable with respect to any such action are assigned to Mortgagee and shall be paid to Mortgagee. Mortgagee shall be under no obligation to question the amount of any such award or compensation and may accept the same in the amount in which the same shall be paid. The proceeds of any award or compensation so received shall, at the option of the Mortgagee, either be applied to the payment of the Debt or be paid over to the Mortgagor for the restoration of the Improvement. Mortgagor, immediately upon obtaining knowledge of the institution or threatened commencement institution, of any proceeding proceedings for the Mortgaged Property, or any part thereof, by condemnation or eminent domain, will notify the Mortgagee of the Property pending of which Borrower has knowledge such proceedings. Mortgagee shall have the right to intervene and shall cause Mortgage Borrower to deliver to Lender copies of participate in any proceedings for and all papers served in connection with such proceedingsany taking referred to in this section. Provided no Event of Default has occurred and is continuing, in Mortgagor shall not enter into any agreement for the event of a condemnation where the amount taking of the taking does not exceed Mortgaged Property or any part thereof with any person or persons authorized to acquire the Insurance Thresholdsame by condemnation or eminent domain, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnationunless the Mortgagee shall have consented thereto in writing. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds foregoing actions are sometimes called a “condemnation” or “taking” in this Mortgage and the Insurance Threshold or if an Event other Loan Documents. Such proceeds include, without limitation, severance damages, damages arising from the change of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense grade of any such proceedingsstreet or the access thereto, the taking of air rights and damages caused by noise, pollutants and other emissions. Notwithstanding any such taking by or other injury or decrease in value, or the availability of any public or quasi-public authority through condemnation or otherwise (including but not limited to proceeds for any transfer made in lieu of or in anticipation of the exercise of such taking)foregoing, Borrower Mortgagor shall continue to pay the Indebtedness at the time and Debt in the manner provided for its payment required by the Loan Documents. Mortgagee’s rights under this paragraph will survive the foreclosure or other enforcement of this Mortgage, and Mortgagee will have the right to receive and retain all proceeds to the extent of any deficiency which exists upon such foreclosure or other enforcement, together with legal interest thereon, and to the extent of the reasonable counsel fees, costs and disbursements incurred by Mortgagee in connection with the Note and in this Agreement and the Indebtedness collection of such proceeds. Such right shall exist whether or not be reduced until any Award a deficiency judgment shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction sought or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate recovered or rates provided herein or in denied upon the Note. If The remaining balance of such proceeds, if any, will inure to the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration benefit of the Property and otherwise comply with the party entitled thereto by applicable provisions of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered by the Net Insurance Proceedslaw.
Appears in 1 contract
Samples: Contract for Sale and Purchase (Floridian Financial Group Inc)
Condemnation. Lender shall be entitled to receive and collect all Condemnation Proceeds, and all such compensation, awards, damages and other payments or relief, together with all rights and causes of action relating thereto or arising out of any Taking, are hereby assigned to Lender. Borrower shall promptly give Lender notice execute such further assignments of the actual or threatened commencement Condemnation Proceeds as Lender may from time to time reasonably require. Without limiting the generality of the foregoing, following the occurrence of any proceeding for the condemnation of the Property of which Taking, Borrower has knowledge shall give prompt notice thereof to Lender and shall cause Mortgage Borrower all Condemnation Proceeds payable as a result of such Taking to deliver be paid to Lender copies of any and all papers served in connection with such proceedings. Provided no Event of Default has occurred and is continuing, in as additional collateral security hereunder subject to the event of a condemnation where the amount lien of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out applied in a commercially reasonable and timely manneraccordance with Section 2.5. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Indebtedness at the time and in the manner provided for its payment in the Note and in this Agreement and the Indebtedness shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtedness. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authorityTaking, Borrower shall cause Mortgage all the Condemnation Proceeds in respect of such Taking to be paid to Lender which shall, except as provided in Section 7.8, apply such Condemnation Proceeds to reduce the Indebtedness in accordance with Section 2.5. All Condemnation Proceeds received in respect of a temporary Taking shall be deposited and maintained in the Cash Collateral Account, to be applied by Lender in the same manner as Rents (other than security deposits) received from Borrower with respect to promptly commence and diligently prosecute the Restoration operation of the Property; provided, however, that if the Condemnation Proceeds of such temporary Taking are paid in a lump sum in advance, Lender shall hold such Condemnation Proceeds in a segregated interest-bearing escrow account with Lender or Servicer, as applicable, and Lender shall estimate the number of months that the Property will be affected by such temporary Taking, and otherwise comply with shall disburse from such escrow account into the applicable provisions Cash Collateral Account each month during the pendency of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower such temporary Taking such Condemnation Proceeds required to pay all costs of Restoration whether or not for such costs are covered by the Net Insurance Proceedsrepair/restoration in such month.
Appears in 1 contract
Condemnation. Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the condemnation of the Property of which Borrower has knowledge and shall cause Mortgage Borrower to deliver to Lender copies of any and take all papers served in connection necessary action, with such proceedings. Provided no Event of Default has occurred and is continuingLender's consent, in the event of a condemnation where the amount of the taking does not exceed the Insurance Threshold, Borrower may (or may cause Mortgage Borrower to) settle and compromise such condemnation. Any such settlement and compromise must be carried out in a commercially reasonable and timely manner. In the event of a condemnation where the amount of the taking exceeds the Insurance Threshold or if an Event of Default then exists, Borrower may (and may cause or permit Mortgage Borrower to) settle and compromise the condemnation only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have withheld, to obtain the opportunity to participate, at Borrower’s cost, in any litigation and settlement discussions in respect thereof, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, cause Mortgage Borrower to diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense benefit of any such proceedings. Notwithstanding sums lawfully or equitably payable to Borrower or Lender for the condemnation of any taking by any part of the Property for public or quasi-public authority through condemnation use, or by virtue of private sale in lieu thereof, and any sums which may be awarded or become payable to Borrower for injury or damage to the Property, all of which shall be paid directly to Lender, whether or not the security for the Loan has been impaired or otherwise affected, and applied first to reimburse Lender and Trustee for all unreimbursed costs and expenses, including reasonable attorney's fees, actually incurred in connection with the collection of such sums and the balance of such sums shall, at Lender's option in its reasonable discretion, be (including but not limited i) released to any transfer made in lieu of Borrower, (ii) applied to repair or in anticipation restoration, either partly or entirely, of the exercise Property so affected, on conditions required by Lender, or (iii) applied to the payment of the Obligations, whether or not due, in such order and manner as Lender may elect in its sole discretion; provided, however, that so long as no Default has occurred and is continuing under the Loan Documents, Lender agrees not to unreasonably withhold its consent to the application of such taking)funds to repair or restore the Property so affected, Borrower on conditions required by Lender. In any event the unpaid portion of the Obligations shall continue to pay the Indebtedness at the time remain in full force and in the manner provided for its payment in the Note and in this Agreement effect and the Indebtedness payment thereof shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Indebtednessexcused. Lender shall not be limited be, under any circumstances, liable or responsible for failure to collect or to exercise diligence in the collection of any such sum or for failure to see to the interest proper application of any amount paid on the Award by the condemning authority but shall be entitled over to receive out of the Award interest at the rate or rates provided herein or Borrower. Lender is hereby authorized, in the Note. If the Property or any portion thereof is taken by a condemning authorityname of Borrower, to execute and deliver valid acquittance for, and to participate (provided that if no Default has occurred, Borrower shall cause Mortgage be allowed to assume the primary role) in any appeal from, any such award, judgment or decree, and all costs and expenses (including attorneys' fees, appraisal costs, and consultant fees) incurred by Lender in connection with any such condemnation shall be due and payable by Borrower to promptly commence and diligently prosecute the Restoration on demand, a part of the Property and otherwise comply with the applicable provisions Obligations, even if in excess of the Mortgage Loan Agreement. Borrower shall cause Mortgage Borrower to pay all costs of Restoration whether or not such costs are covered Committed Sum, and secured by the Net Insurance ProceedsLoan Documents.
Appears in 1 contract
