Foreclosure. The Lenders hereby agree to the following in the event of foreclosure under any of the Mortgages or any other attempt at realization of the security thereunder: (a) To subscribe to and accept its Percentage of the ownership interests in any entity organized to hold title to the Collateral Pool Assets and that the nature of such entity shall be determined by the Required Lenders, subject to each Lender's right to hold its interests in such entity in, and assign such interests to, any affiliate of such Lender or any other entity required by laws or regulations governing such Lender. The Administrative Agent is hereby authorized to act for and on behalf of the Lenders in all day-to-day matters with respect to the exercise of rights described herein such as the supervision of attorneys, accountants, appraisers or others acting for the benefit of all of the Lenders in connection with litigation, foreclosure or realization of all or any security given as Collateral for the Obligations or other similar actions. (b) If the Lenders acquire the Collateral Pool Assets either by foreclosure or deed in lieu of foreclosure, to negotiate in good faith to reach agreement in writing relating to the ownership, operation, maintenance, marketing and sale of such Collateral Pool Assets and that such agreement shall be consistent with the following: (i) The Collateral Pool Assets will not be held as a long-term investment but will be marketed in an attempt to sell them in a time period consistent with the regulations applicable to national banks for owning real estate. Current appraisals of the Collateral Properties shall be obtained by the Administrative Agent from time to time during the ownership period at Lenders' expense (without diminishing or releasing any obligation of the Borrower to pay for such costs) and an appraised value shall be established and updated from time to time based on such appraisals. (ii) Certain decisionmaking with respect to the day-to-day operations of the Properties will be delegated to management and leasing agents. All agreements with such management and leasing agents will be subject to the approval of the Required Lenders. The day-to-day supervision of such agents shall be done by the Administrative Agent. (iii) Except as provided in the following sentences, all decisions as to whether to sell the Collateral Pool Assets shall be subject to the approval of all the Lenders. Notwithstanding the foregoing, the Lenders agree that if the Administrative Agent receives a bona fide "all cash" offer from an entity not affiliated with the Borrower or any Lender for the purchase of any of the Collateral Pool Assets and such offer equals or exceeds ninety percent (90%) of the most recent appraised value of such Collateral Pool Asset as established by an appraisal prepared in accordance with the standards established in this Agreement that has been completed within six months of such offer, then the Administrative Agent shall give written notice of such offer to the Lenders and request their approval for sale at such a price. If the Required Lenders approve of such a sale (or are deemed to approve of such a sale) then the Administrative Agent, acting on behalf of the Lenders, is irrevocably authorized to accept such offer. (iv) All expenses incurred by the Administrative Agent and Lenders in connection with the ownership, operation, maintenance, marketing and sale of the Collateral Pool Assets shall be allocated among the Lenders pro rata in accordance with their respective Percentages. (v) All expenditures and other actions taken with respect to the Collateral Pool Assets shall at all times be subject to the regulations and requirements pertaining to national banks applicable thereto. Without limiting the generality of the foregoing, all necessary approvals from regulatory authorities in connection with any expenditure of funds by the Lenders shall be a condition to such expenditure.
Appears in 3 contracts
Sources: Secured Revolving Credit Agreement (Equity Inns Inc), Secured Revolving Credit Agreement (Equity Inns Inc), Secured Revolving Credit Agreement (Equity Inns Inc)
Foreclosure. The Lenders hereby agree to the following in In the event of foreclosure under that all or any of the Mortgages or any other attempt at realization of the security thereunder:
(a) To subscribe to and accept its Percentage of the ownership interests in any entity organized to hold title to the Collateral Pool Assets and that the nature of such entity shall be determined Qualified Properties are acquired by the Required Lenders, subject to each Lender's right to hold its interests in such entity in, and assign such interests to, any affiliate of such Lender or any other entity required by laws or regulations governing such Lender. The Administrative Agent is hereby authorized to act for and on behalf of the Lenders in all day-to-day matters with respect to the exercise of rights described herein such as the supervision result of attorneys, accountants, appraisers or others acting for the benefit of all of the Lenders in connection with litigation, a foreclosure or realization acceptance of all a deed or any security given as Collateral for the Obligations or other similar actions.
(b) If the Lenders acquire the Collateral Pool Assets either by foreclosure or deed assignment in lieu of foreclosure, or is retained in satisfaction of all or any part of the Obligations (each a “Foreclosure Property”), title to negotiate any such Foreclosure Property or any portion thereof shall be held in good faith to reach agreement the name of Administrative Agent or a nominee or subsidiary of Administrative Agent, as agent, for the benefit of the Lenders, or in writing relating an entity co-owned by the Lenders as determined by Administrative Agent. Administrative Agent shall prepare a recommended course of action for such Foreclosure Property (the “Post-Foreclosure Plan”) and submit it to the ownershipLenders for approval by the Required Lenders. In the event that Administrative Agent does not obtain the approval of the Required Lenders to such Post-Foreclosure Plan, any Lender shall be permitted to submit an alternative Post-Foreclosure Plan to Administrative Agent, and Administrative Agent shall submit any and all such additional Post-Foreclosure Plan(s) to the Lenders for evaluation and the approval by the Required Lenders. In accordance with the approved Post-Foreclosure Plan, Administrative Agent shall manage, operate, repair, administer, complete, construct, restore or otherwise deal with the Foreclosure Property acquired and administer all transactions relating thereto, including, without limitation, employing a management agent, leasing agent and other agents, contractors and employees, including agents for the sale of such Foreclosure Property, and the collecting of rents and other sums from such Foreclosure Property and paying the expenses of such Foreclosure Property. Upon demand therefor from time to time, each Lender will contribute its ratable share (based on their respective Commitment Amount Percentage) of all reasonable costs and expenses incurred by Administrative Agent pursuant to the Post-Foreclosure Plan in connection with the construction, operation, management, maintenance, marketing leasing and sale of the Foreclosure Property. In addition, Administrative Agent shall render or cause to be rendered by the managing agent, to each of the Lenders, monthly, an income and expense statement for such Collateral Pool Assets Foreclosure Property, and that each of the Lenders shall promptly contribute its ratable share (based on their respective Commitment Amount Percentage) of any operating loss for the Foreclosure Property, and such agreement other expenses and operating reserves as Administrative Agent shall deem reasonably necessary pursuant to and in accordance with the Post-Foreclosure Plan. To the extent there is net operating income from such Foreclosure Property, Administrative Agent shall, in accordance with the Post-Foreclosure Plan, determine the amount and timing of distributions to the Lenders. All such distributions shall be consistent with made to the following:
(i) Lenders in proportion to their respective Commitments immediately prior to the termination thereof. The Collateral Pool Assets Lenders acknowledge that if title to any Foreclosure Property is obtained by Administrative Agent or its nominee, or an entity co-owned by the Lenders, such Foreclosure Property will not be held as a long-term permanent investment but will be marketed in an attempt to sell them in disposed of as soon as practicable and within a time period consistent with the regulations applicable to national banks for owning real estate. Current appraisals Administrative Agent shall undertake to sell such Foreclosure Property at such price and upon such terms and conditions as the Required Lenders shall reasonably determine to be most advantageous. Any purchase money mortgage or deed of trust taken in connection with the disposition of such Foreclosure Property in accordance with the immediately preceding sentence shall name Administrative Agent, as agent for the Lenders, as the beneficiary or mortgagee. In such case, Administrative Agent and the Lenders shall enter into an agreement with respect to such purchase money mortgage defining the rights of the Collateral Properties Lenders in the same, which agreement shall be obtained by in all material respects similar to the Administrative Agent from time to time during the ownership period at Lenders' expense (without diminishing or releasing any obligation rights of the Borrower to pay for such costs) and an appraised value shall be established and updated from time to time based on such appraisals.
(ii) Certain decisionmaking Lenders with respect to the dayForeclosure Property. Lenders agree not to unreasonably withhold or delay their approval of a Post-to-day operations Foreclosure Plan or any third party offer to purchase the Foreclosure Property. An offer to purchase the Foreclosure Property at a gross purchase price of 95% of the Properties will be delegated to management and leasing agents. All agreements with such management and leasing agents will be subject to the approval fair market value of the Required Lenders. The day-to-day supervision of such agents property as set forth in a current Appraisal, shall be done by the Administrative Agent.
(iii) Except as provided in the following sentences, all decisions as to whether to sell the Collateral Pool Assets shall be subject to the approval of all the Lenders. Notwithstanding the foregoing, the Lenders agree that if the Administrative Agent receives a bona fide "all cash" offer from an entity not affiliated with the Borrower or any Lender for the purchase of any of the Collateral Pool Assets and such offer equals or exceeds ninety percent (90%) of the most recent appraised value of such Collateral Pool Asset as established by an appraisal prepared in accordance with the standards established in this Agreement that has been completed within six months of such offer, then the Administrative Agent shall give written notice of such offer to the Lenders and request their approval for sale at such a price. If the Required Lenders approve of such a sale (or are deemed to approve of such be a sale) then the Administrative Agent, acting on behalf of the Lenders, is irrevocably authorized to accept such reasonable offer.
(iv) All expenses incurred by the Administrative Agent and Lenders in connection with the ownership, operation, maintenance, marketing and sale of the Collateral Pool Assets shall be allocated among the Lenders pro rata in accordance with their respective Percentages.
(v) All expenditures and other actions taken with respect to the Collateral Pool Assets shall at all times be subject to the regulations and requirements pertaining to national banks applicable thereto. Without limiting the generality of the foregoing, all necessary approvals from regulatory authorities in connection with any expenditure of funds by the Lenders shall be a condition to such expenditure.
Appears in 3 contracts
Sources: Borrowing Base Revolving Line of Credit Agreement (Cole Real Estate Income Strategy (Daily Nav), Inc.), Borrowing Base Revolving Line of Credit Agreement (Cole Credit Property Trust Iv, Inc.), Borrowing Base Revolving Line of Credit Agreement (Cole Credit Property Trust III, Inc.)
Foreclosure. The Lenders hereby agree to the following in the event of foreclosure under any of the Mortgages Mortgage or any other attempt at realization of the security thereunder:
(a) To subscribe to and accept its Percentage of the ownership interests in any entity organized to hold title to the Collateral Pool Assets Asset and that the nature of such entity shall be determined by the Required Lenders, subject to each Lender's right to hold its interests in such entity in, and assign such interests to, any affiliate of such Lender or any other entity required by laws or regulations governing such Lender. The Administrative Agent is hereby authorized to act for and on behalf of the Lenders in all day-to-day matters with respect to the exercise of rights described herein such as the supervision of attorneys, accountants, appraisers or others acting for the benefit of all of the Lenders in connection with litigation, foreclosure or realization of all or any security given as Collateral for the Obligations or other similar actions.
(b) If the Lenders acquire the Collateral Pool Assets Asset either by foreclosure or deed in lieu of foreclosure, to negotiate in good faith to reach agreement in writing relating to the ownership, operation, maintenance, marketing and sale of such Collateral Pool Assets Asset and that such agreement shall be consistent with the following:
(i) The Collateral Pool Assets Asset will not be held as a long-term investment but will be marketed in an attempt to sell them in a time period consistent with the regulations applicable to national banks for owning real estate. Current appraisals of the Collateral Properties Asset shall be obtained by the Administrative Agent from time to time during the ownership period at Lenders' expense (without diminishing or releasing any obligation of the Borrower to pay for such costs) and an appraised value shall be established and updated from time to time based on such appraisals.
(ii) Certain decisionmaking decision making with respect to the day-to-day operations of the Properties Collateral Asset will be delegated to management and leasing agents. All agreements with such management and leasing agents will be subject to the approval of the Required Lenders. The day-to-day supervision of such agents shall be done by the Administrative Agent.
(iii) Except as provided in the following sentences, all decisions as to whether to sell the Collateral Pool Assets Asset shall be subject to the approval of all the Lenders. Notwithstanding the foregoing, the Lenders agree that if the Administrative Agent receives a bona fide "all cash" offer from an entity not affiliated with the Borrower or any Lender for the purchase of any of the Collateral Pool Assets Asset and such offer equals or exceeds ninety percent (90%) of the most recent appraised value Appraised Value of such Collateral Pool Asset as established by an appraisal Appraisal prepared in accordance with the standards established in this Agreement that has been completed within six months of such offer, then the Administrative Agent shall give written notice of such offer to the Lenders and request their approval for sale at such a price. If the Required Lenders approve of such a sale (or are deemed to approve of such a sale) then the Administrative Agent, acting on behalf of the Lenders, is irrevocably authorized to accept such offer.
(iv) All expenses incurred by the Administrative Agent and Lenders in connection with the ownership, operation, maintenance, marketing and sale of the Collateral Pool Assets Asset shall be allocated among the Lenders pro rata in accordance with their respective Percentages.
(v) All expenditures and other actions taken with respect to the Collateral Pool Assets Asset shall at all times be subject to the regulations and requirements pertaining to national banks applicable thereto. Without limiting the generality of the foregoing, all necessary approvals from regulatory authorities in connection with any expenditure of funds by the Lenders shall be a condition to such expenditure.
Appears in 2 contracts
Sources: Term Loan Agreement (Glimcher Realty Trust), Term Loan Agreement (Glimcher Realty Trust)
Foreclosure. The Lenders hereby agree to the following in the event of foreclosure under any of the Mortgages or any other attempt at realization of the security thereunder:
(a) To subscribe to and accept its Percentage of the ownership interests in any entity organized to hold title to the Collateral Pool Assets and that the nature of such entity Mortgagee shall be determined by the Required Lenders, subject to each Lender's right to hold its interests in such entity in, and assign such interests to, any affiliate of such Lender or any other entity required by laws or regulations governing such Lender. The Administrative Agent is hereby authorized to act for and on behalf of the Lenders in all day-to-day matters with respect to the exercise of rights described herein such as the supervision of attorneys, accountants, appraisers or others acting for the benefit of have all of the Lenders rights and may exercise all of the powers set forth in connection applicable Law of the State. Mortgagee may sell the Property in its entirety or in parcels, and by one or by several sales, as deemed appropriate by Mortgagee in its sole and absolute discretion. If Mortgagee chooses to have more than one foreclosure sale, Mortgagee may cause the foreclosure sales to be held simultaneously or successively, on the same day, or on such different days and at such different times as Mortgagee may elect. Before any foreclosure sale, Mortgagee shall give such notice of default and election to sell as may be required by Law. After the lapse of such time as may then be required by Law following the recordation of such notice of default, and notice of sale having been given as then required by Law, Mortgagee shall sell the property being sold at a public auction to be held at the time and place specified in the notice of sale. Mortgagee shall have no obligation to make demand on Mortgagor before any foreclosure sale. From time to time in accordance with litigationthen-applicable Law, Mortgagee may postpone any foreclosure sale by public announcement at the time and place noticed for that sale. At any foreclosure sale, Mortgagee shall sell to the highest bidder at public auction for cash in lawful money of the United States (or realization cash equivalents acceptable to Mortgagee to the extent permitted by applicable Law), payable at the time of sale. Mortgagee shall execute and deliver to the purchaser(s) a deed or deeds conveying the property being sold without any covenant or warranty whatsoever, expressed or implied. The recitals in any such deed of any matters of fact, including any facts bearing upon the regularity or validity of any foreclosure sale, shall be conclusive proof of their truthfulness. Any such deed shall be conclusive against all Persons as to the facts recited therein. Any Person, including Mortgagee, may purchase at such sale, and any bid by Mortgagee may be, in whole or in part, in the form of cancellation of all or any security given as Collateral for part of the Obligations or other similar actions.
(b) If Obligations. Notwithstanding the Lenders acquire the Collateral Pool Assets either by foreclosure or deed in lieu provisions of foreclosure, to negotiate in good faith to reach agreement in writing relating this Section 7.2 to the ownershipcontrary, operation, maintenance, marketing and any foreclosure sale of such Collateral Pool Assets and that such agreement all or any portion of the lien of this Mortgage shall be consistent a judicial foreclosure in accordance with the following:
(i) The Collateral Pool Assets will not be held applicable requirements of Ohio law, as a long-term investment but will be marketed in an attempt to sell them in a time period consistent with the regulations applicable to national banks for owning real estate. Current appraisals of the Collateral Properties shall be obtained by the Administrative Agent from time to time during the ownership period at Lenders' expense (without diminishing or releasing any obligation of the Borrower to pay for such costs) and an appraised value shall be established and updated from time to time based on such appraisalsamended.
(ii) Certain decisionmaking with respect to the day-to-day operations of the Properties will be delegated to management and leasing agents. All agreements with such management and leasing agents will be subject to the approval of the Required Lenders. The day-to-day supervision of such agents shall be done by the Administrative Agent.
(iii) Except as provided in the following sentences, all decisions as to whether to sell the Collateral Pool Assets shall be subject to the approval of all the Lenders. Notwithstanding the foregoing, the Lenders agree that if the Administrative Agent receives a bona fide "all cash" offer from an entity not affiliated with the Borrower or any Lender for the purchase of any of the Collateral Pool Assets and such offer equals or exceeds ninety percent (90%) of the most recent appraised value of such Collateral Pool Asset as established by an appraisal prepared in accordance with the standards established in this Agreement that has been completed within six months of such offer, then the Administrative Agent shall give written notice of such offer to the Lenders and request their approval for sale at such a price. If the Required Lenders approve of such a sale (or are deemed to approve of such a sale) then the Administrative Agent, acting on behalf of the Lenders, is irrevocably authorized to accept such offer.
(iv) All expenses incurred by the Administrative Agent and Lenders in connection with the ownership, operation, maintenance, marketing and sale of the Collateral Pool Assets shall be allocated among the Lenders pro rata in accordance with their respective Percentages.
(v) All expenditures and other actions taken with respect to the Collateral Pool Assets shall at all times be subject to the regulations and requirements pertaining to national banks applicable thereto. Without limiting the generality of the foregoing, all necessary approvals from regulatory authorities in connection with any expenditure of funds by the Lenders shall be a condition to such expenditure.
Appears in 2 contracts
Sources: Open End Mortgage, Assignment, Security Agreement and Fixture Filing (NNN Healthcare/Office REIT, Inc.), Open End Mortgage, Assignment, Security Agreement and Fixture Filing (Grubb & Ellis Healthcare REIT, Inc.)
Foreclosure. The Lenders hereby agree to the following in In the event of foreclosure under any of the Mortgages or any other attempt at realization of the security thereunder:
(a) To subscribe to and accept its Percentage of the ownership interests in any entity organized to hold title to the Collateral Pool Assets and that the nature of such entity shall be determined by the Required Lenders, subject to each Lender's right to hold its interests in such entity in, and assign such interests to, any affiliate of such Lender or any other entity required by laws or regulations governing such Lender. The Administrative Agent is hereby authorized to act for and on behalf of the Lenders in all day-to-day matters with respect to the exercise of rights described herein such as the supervision of attorneys, accountants, appraisers or others acting for the benefit of all of the Lenders in connection with litigation, foreclosure or realization of all or any security given portion of the Property is acquired by Administrative Agent as Collateral for the Obligations or other similar actions.
(b) If the Lenders acquire the Collateral Pool Assets either by result of a foreclosure or acceptance of a deed or assignment in lieu of foreclosure, or is retained in satisfaction of all or any part of the Indebtedness and Obligations, title to negotiate any such Property or any portion thereof shall be held in good faith to reach agreement the name of Administrative Agent or a nominee or subsidiary of Administrative Agent, as agent, for the benefit of the Lenders, or in writing relating an entity co-owned by the Lenders as determined by Administrative Agent. Administrative Agent shall prepare a recommended course of action for such Property (the “Post-Foreclosure Plan”) and submit it to the ownershipLenders for approval by the Required Lenders. In the event that Administrative Agent does not obtain the approval of the Required Lenders to such Post-Foreclosure Plan, any Lender shall be permitted to submit an alternative Post-Foreclosure Plan to Administrative Agent, and Administrative Agent shall submit any and all such additional Post-Foreclosure Plan(s) to the Lenders for evaluation and the approval by the Required Lenders. In accordance with the approved Post-Foreclosure Plan, Administrative Agent shall manage, operate, repair, administer, complete, construct, restore or otherwise deal with the Property acquired and administer all transactions relating thereto, including, without limitation, employing a management agent, leasing agent and other agents, contractors and employees, including agents for the sale of such Property, and the collecting of rents and other sums from such Property and paying the expenses of such Property. Upon demand therefor from time to time, each Lender will contribute its Pro Rata Share (based on their respective Commitments immediately prior to the termination thereof) of all reasonable costs and expenses incurred by Administrative Agent pursuant to the Post-Foreclosure Plan in connection with the construction, operation, management, maintenance, marketing leasing and sale of the Property. In addition, Administrative Agent shall render or cause to be rendered by the managing agent, to each of the Lenders, monthly, an income and expense statement for such Collateral Pool Assets Property, and that each of the Lenders shall promptly contribute its Pro Rata Share (based on their respective Commitments immediately prior to the termination thereof) of any operating loss for the Property, and such agreement other expenses and operating reserves as Administrative Agent shall deem reasonably necessary pursuant to and in accordance with the Post-Foreclosure Plan. To the extent there is net operating income from such Property, Administrative Agent shall, in accordance with the Post-Foreclosure Plan, determine the amount and timing of distributions to the Lenders. All such distributions shall be consistent with made to the following:
(i) Lenders in proportion to their respective Commitments immediately prior to the termination thereof. The Collateral Pool Assets Lenders acknowledge that if title to any Property is obtained by Administrative Agent or its nominee, or an entity co-owned by the Lenders, such Property will not be held as a long-term permanent investment but will be marketed in an attempt to sell them in disposed of as soon as practicable and within a time period consistent with the regulations applicable to national banks for owning real estate. Current appraisals Administrative Agent shall undertake to sell such Property at such price and upon such terms and conditions as the Required Lenders shall reasonably determine to be most advantageous, and any sale proceeds from the Property shall be distributed by Administrative Agent to the Lenders in proportion to their respective Commitments immediately prior to the termination thereof in accordance with the provisions set forth in Section 2.6(b) hereof. Any purchase money mortgage or deed of trust taken in connection with the disposition of such Property in accordance with the immediately preceding sentence shall name Administrative Agent, as agent for the Lenders, as the beneficiary or mortgagee. In such case, Administrative Agent and the Lenders shall enter into an agreement with respect to such purchase money mortgage defining the rights of the Collateral Properties Lenders in the same, which agreement shall be obtained by in all material respects similar to the Administrative Agent from time to time during the ownership period at Lenders' expense (without diminishing or releasing any obligation rights of the Borrower to pay for such costs) and an appraised value shall be established and updated from time to time based on such appraisals.
(ii) Certain decisionmaking Lenders with respect to the day-to-day operations of the Properties will be delegated Property. Lenders agree not to management and leasing agents. All agreements with such management and leasing agents will be subject to the unreasonably withhold or delay their approval of the Required Lenders. The daya Post-to-day supervision of such agents shall be done by the Administrative Agent.
(iii) Except as provided in the following sentences, all decisions as to whether to sell the Collateral Pool Assets shall be subject to the approval of all the Lenders. Notwithstanding the foregoing, the Lenders agree that if the Administrative Agent receives a bona fide "all cash" offer from an entity not affiliated with the Borrower Foreclosure Plan or any Lender for third party offer to purchase the Property. An offer to purchase the Property at a gross purchase price of any of the Collateral Pool Assets and such offer equals or exceeds ninety ninety-five percent (9095%) of the most recent appraised fair market value of such Collateral Pool Asset the property as established by an appraisal prepared set forth in accordance with the standards established in this Agreement that has been completed within six months of such offera current appraisal, then the Administrative Agent shall give written notice of such offer to the Lenders and request their approval for sale at such a price. If the Required Lenders approve of such a sale (or are be deemed to approve of such be a sale) then the Administrative Agent, acting on behalf of the Lenders, is irrevocably authorized to accept such reasonable offer.
(iv) All expenses incurred by the Administrative Agent and Lenders in connection with the ownership, operation, maintenance, marketing and sale of the Collateral Pool Assets shall be allocated among the Lenders pro rata in accordance with their respective Percentages.
(v) All expenditures and other actions taken with respect to the Collateral Pool Assets shall at all times be subject to the regulations and requirements pertaining to national banks applicable thereto. Without limiting the generality of the foregoing, all necessary approvals from regulatory authorities in connection with any expenditure of funds by the Lenders shall be a condition to such expenditure.
Appears in 2 contracts
Sources: Construction Loan Agreement (Bluerock Residential Growth REIT, Inc.), Construction Loan Agreement (Bluerock Residential Growth REIT, Inc.)
Foreclosure. The Lenders hereby agree to the following in In the event of foreclosure under any of the Mortgages or any other attempt at realization of the security thereunder:
(a) To subscribe to and accept its Percentage of the ownership interests in any entity organized to hold title to the Collateral Pool Assets and that the nature of such entity shall be determined by the Required Lenders, subject to each Lender's right to hold its interests in such entity in, and assign such interests to, any affiliate of such Lender or any other entity required by laws or regulations governing such Lender. The Administrative Agent is hereby authorized to act for and on behalf of the Lenders in all day-to-day matters with respect to the exercise of rights described herein such as the supervision of attorneys, accountants, appraisers or others acting for the benefit of all of the Lenders in connection with litigation, foreclosure or realization of all or any security given portion of a Qualified Property is acquired by the Administrative Agent as Collateral for the Obligations or other similar actions.
(b) If the Lenders acquire the Collateral Pool Assets either by result of a foreclosure or acceptance of a deed or assignment in lieu of foreclosure, or is retained in satisfaction of all or any part of the Obligations, title to negotiate such Qualified Property or any portion thereof shall be held in good faith to reach agreement the name of the Administrative Agent or a nominee or subsidiary of the Administrative Agent, as agent, for the benefit of the Lenders, or in writing relating an entity co-owned by the Lenders as determined by the Administrative Agent. The Administrative Agent shall prepare a recommended course of action for such Qualified Property (the “Post-Foreclosure Plan”) and submit it to the ownershipLenders for approval by the Required Lenders. In the event that the Administrative Agent does not obtain the approval of the Required Lenders to such Post-Foreclosure Plan, any Lender shall be permitted to submit an alternative Post-Foreclosure Plan to the Administrative Agent, and the Administrative Agent shall submit any and all such additional Post-Foreclosure Plan(s) to the Lenders for evaluation and the approval by the Required Lenders. In accordance with the approved Post-Foreclosure Plan, the Administrative Agent shall manage, operate, repair, administer, complete, construct, restore or otherwise deal with the Qualified Property acquired and administer all transactions relating thereto, including, without limitation, employing a management agent, leasing agent and other agents, contractors and employees, including agents for the sale of such Qualified Property, and the collecting of rents and other sums from such Qualified Property and paying the expenses of such Qualified Property. Upon demand therefor from time to time, each Lender will contribute its ratable share (based on their respective Commitments immediately prior to the termination thereof) of all reasonable costs and expenses incurred by the Administrative Agent pursuant to the Post-Foreclosure Plan in connection with the construction, operation, management, maintenance, marketing leasing and sale of the Qualified Property. In addition, the Administrative Agent shall render or cause to be rendered by the managing agent, to each of the Lenders, monthly, an income and expense statement for such Collateral Pool Assets Qualified Property, and that each of the Lenders shall promptly contribute its ratable share (based on their respective Commitments immediately prior to the termination thereof) of any operating loss for the Qualified Property, and such agreement other expenses and operating reserves as the Administrative Agent shall deem reasonably necessary pursuant to and in accordance with the Post-Foreclosure Plan. To the extent there is net operating income from such Qualified Property, the Administrative Agent shall, in accordance with the Post-Foreclosure Plan, determine the amount and timing of distributions to the Lenders. All such distributions shall be consistent with made to the following:
(i) Lenders in proportion to their respective Commitments immediately prior to the termination thereof. The Collateral Pool Assets Lenders acknowledge that if title to any Qualified Property is obtained by the Administrative Agent or its nominee, or an entity co-owned by the Lenders, such Qualified Property will not be held as a long-term permanent investment but will be marketed in an attempt to sell them in disposed of as soon as practicable and within a time period consistent with the regulations applicable to national banks for owning real estate. Current appraisals The Administrative Agent shall undertake to sell such Qualified Property at such price and upon such terms and conditions as the Required Lenders shall reasonably determine to be most advantageous. Any purchase money mortgage or deed of trust taken in connection with the Collateral Properties disposition of such Qualified Property in accordance with the immediately preceding sentence shall be obtained by name the Administrative Agent, as agent for the Lenders, as the beneficiary or mortgagee. In such case, the Administrative Agent from time and the Lenders shall enter into an agreement with respect to time during such purchase money mortgage defining the ownership period at Lenders' expense (without diminishing or releasing any obligation rights of the Borrower to pay for such costs) and an appraised value Lenders in the same, which agreement shall be established and updated from time in all material respects similar to time based on such appraisals.
(ii) Certain decisionmaking the rights of the Lenders with respect to the day-to-day operations of the Properties will be delegated Qualified Property. Lenders agree not to management and leasing agents. All agreements with such management and leasing agents will be subject to the unreasonably withhold or delay their approval of the Required Lenders. The daya Post-to-day supervision of such agents shall be done by the Administrative Agent.
(iii) Except as provided in the following sentences, all decisions as to whether to sell the Collateral Pool Assets shall be subject to the approval of all the Lenders. Notwithstanding the foregoing, the Lenders agree that if the Administrative Agent receives a bona fide "all cash" offer from an entity not affiliated with the Borrower Foreclosure Plan or any Lender for third party offer to purchase the Qualified Property. An offer to purchase the Qualified Property or any portion thereof at a gross purchase price of any of the Collateral Pool Assets and such offer equals or exceeds ninety ninety-five percent (9095%) of the most recent appraised fair market value of such Collateral Pool Asset property as established by an appraisal prepared set forth in accordance with the standards established in this Agreement that has been completed within six months of such offera current appraisal, then the Administrative Agent shall give written notice of such offer to the Lenders and request their approval for sale at such a price. If the Required Lenders approve of such a sale (or are be deemed to approve of such be a sale) then the Administrative Agent, acting on behalf of the Lenders, is irrevocably authorized to accept such reasonable offer.
(iv) All expenses incurred by the Administrative Agent and Lenders in connection with the ownership, operation, maintenance, marketing and sale of the Collateral Pool Assets shall be allocated among the Lenders pro rata in accordance with their respective Percentages.
(v) All expenditures and other actions taken with respect to the Collateral Pool Assets shall at all times be subject to the regulations and requirements pertaining to national banks applicable thereto. Without limiting the generality of the foregoing, all necessary approvals from regulatory authorities in connection with any expenditure of funds by the Lenders shall be a condition to such expenditure.
Appears in 1 contract
Sources: Modification Agreement (Cole Office & Industrial REIT (CCIT III), Inc.)
Foreclosure. The Lenders hereby agree to the following in the event of foreclosure under any of the Mortgages Mortgage or any other attempt at realization of the security thereunder:
(a) To subscribe to and accept its Percentage of the ownership interests in any entity organized to hold title to the Collateral Pool Assets Asset and that the nature of such entity shall be determined by the Required Lenders, subject to each Lender's ’s right to hold its interests in such entity in, and assign such interests to, any affiliate of such Lender or any other entity required by laws or regulations governing such Lender. The Administrative Agent is hereby authorized to act for and on behalf of the Lenders in all day-to-day matters with respect to the exercise of rights described herein such as the supervision of attorneys, accountants, appraisers or others acting for the benefit of all of the Lenders in connection with litigation, foreclosure or realization of all or any security given as Collateral for the Obligations or other similar actions.
(b) If the Lenders acquire the Collateral Pool Assets Asset either by foreclosure or deed in lieu of foreclosure, to negotiate in good faith to reach agreement in writing relating to the ownership, operation, maintenance, marketing and sale of such the Collateral Pool Assets Asset and that such agreement shall be consistent with the following:
(i) The Collateral Pool Assets Asset will not be held as a long-term investment but will be marketed in an attempt to sell them in a time period consistent with the regulations applicable to national banks for owning real estate. Current appraisals of the Collateral Properties Asset shall be obtained by the Administrative Agent from time to time during the ownership period at Lenders' ’ expense (without diminishing or releasing any obligation of the Borrower to pay for such costs) and an appraised value shall be established and updated from time to time based on such appraisals.
(ii) Certain decisionmaking decision making with respect to the day-to-day operations of the Properties Collateral Asset will be delegated to management and leasing agents. All agreements with such management and leasing agents will be subject to the approval of the Required Lenders. The day-to-day supervision of such agents shall be done by the Administrative Agent.
(iii) Except as provided in the following sentences, all decisions as to whether to sell the Collateral Pool Assets Asset shall be subject to the approval of all the Lenders. Notwithstanding the foregoing, the Lenders agree that if the Administrative Agent receives a bona fide "“all cash" ” offer from an entity not affiliated with the Borrower or any Lender for the purchase of any of the Collateral Pool Assets Asset and such offer equals or exceeds ninety percent (90%) of the most recent appraised value Appraised Value of such Collateral Pool Asset as established by an appraisal Appraisal prepared in accordance with the standards established in this Agreement that has been completed within six months of such offer, then the Administrative Agent shall give written notice of such offer to the Lenders and request their approval for sale at such a price. If the Required Lenders approve of such a sale (or are deemed to approve of such a sale) then the Administrative Agent, acting on behalf of the Lenders, is irrevocably authorized to accept such offer.
(iv) All expenses incurred by the Administrative Agent and Lenders in connection with the ownership, operation, maintenance, marketing and sale of the Collateral Pool Assets Asset shall be allocated among the Lenders pro rata in accordance with their respective Percentages.
(v) All expenditures and other actions taken with respect to the Collateral Pool Assets Asset shall at all times be subject to the regulations and requirements pertaining to national banks applicable thereto. Without limiting the generality of the foregoing, all necessary approvals from regulatory authorities in connection with any expenditure of funds by the Lenders shall be a condition to such expenditure.
Appears in 1 contract
Foreclosure. The Lenders hereby agree to the following in In the event of foreclosure under any of the Mortgages or any other attempt at realization of the security thereunder:
(a) To subscribe to and accept its Percentage of the ownership interests in any entity organized to hold title to the Collateral Pool Assets and that the nature of such entity shall be determined by the Required Lenders, subject to each Lender's right to hold its interests in such entity in, and assign such interests to, any affiliate of such Lender or any other entity required by laws or regulations governing such Lender. The Administrative Agent is hereby authorized to act for and on behalf of the Lenders in all day-to-day matters with respect to the exercise of rights described herein such as the supervision of attorneys, accountants, appraisers or others acting for the benefit of all of the Lenders in connection with litigation, foreclosure or realization of all or any security given portion of a Borrowing Base Property is acquired by Administrative Agent as Collateral for the Obligations or other similar actions.
(b) If the Lenders acquire the Collateral Pool Assets either by result of a foreclosure or acceptance of a deed or assignment in lieu of foreclosure, or is retained in satisfaction of all or any part of the Obligations, title to negotiate such Borrowing Base Property or any portion thereof shall be held in good faith to reach agreement the name of Administrative Agent or a nominee or subsidiary of Administrative Agent, as agent, for the benefit of the Lenders, or in writing relating an entity co-owned by the Lenders as determined by Administrative Agent. Administrative Agent shall prepare a recommended course of action for such Borrowing Base Property (the “Post-Foreclosure Plan”) and submit it to the ownershipLenders for approval by the Required Lenders. In the event that Administrative Agent does not obtain the approval of the Required Lenders to such Post-Foreclosure Plan, any Lender shall be permitted to submit an alternative Post-Foreclosure Plan to Administrative Agent, and Administrative Agent shall submit any and all such additional Post-Foreclosure Plan(s) to the Lenders for evaluation and the approval by the Required Lenders. In accordance with the approved Post-Foreclosure Plan, Administrative Agent shall manage, operate, repair, administer, complete, construct, restore or otherwise deal with the Borrowing Base Property acquired and administer all transactions relating thereto, including, without limitation, employing a management agent, leasing agent and other agents, contractors and employees, including agents for the sale of such - 110 - Borrowing Base Property, and the collecting of rents and other sums from such Borrowing Base Property and paying the expenses of such Borrowing Base Property. Upon demand therefor from time to time, each Lender will contribute its ratable share (based on their respective Commitments immediately prior to the termination thereof) of all reasonable costs and expenses incurred by Administrative Agent pursuant to the Post-Foreclosure Plan in connection with the construction, operation, management, maintenance, marketing leasing and sale of the Borrowing Base Property. In addition, Administrative Agent shall render or cause to be rendered by the managing agent, to each of the Lenders, monthly, an income and expense statement for such Collateral Pool Assets Borrowing Base Property, and that each of the Lenders shall promptly contribute its ratable share (based on their respective Commitments immediately prior to the termination thereof) of any operating loss for the Borrowing Base Property, and such agreement other expenses and operating reserves as Administrative Agent shall deem reasonably necessary pursuant to and in accordance with the Post-Foreclosure Plan. To the extent there is net operating income from such Borrowing Base Property, Administrative Agent shall, in accordance with the Post-Foreclosure Plan, determine the amount and timing of distributions to the Lenders. All such distributions shall be consistent with made to the following:
(i) Lenders in proportion to their respective Commitments immediately prior to the termination thereof. The Collateral Pool Assets Lenders acknowledge that if title to any Borrowing Base Property is obtained by Administrative Agent or its nominee, or an entity co-owned by the Lenders, such Borrowing Base Property will not be held as a long-term permanent investment but will be marketed in an attempt to sell them in disposed of as soon as practicable and within a time period consistent with the regulations applicable to national banks for owning real estate. Current appraisals Administrative Agent shall undertake to sell such Borrowing Base Property at such price and upon such terms and conditions as the Required Lenders shall reasonably determine to be most advantageous. Any purchase money mortgage or deed of trust taken in connection with the disposition of such Borrowing Base Property in accordance with the immediately preceding sentence shall name Administrative Agent, as agent for the Lenders, as the beneficiary or mortgagee. In such case, Administrative Agent and the Lenders shall enter into an agreement with respect to such purchase money mortgage defining the rights of the Collateral Properties Lenders in the same, which agreement shall be obtained by in all material respects similar to the Administrative Agent from time to time during the ownership period at Lenders' expense (without diminishing or releasing any obligation rights of the Borrower to pay for such costs) and an appraised value shall be established and updated from time to time based on such appraisals.
(ii) Certain decisionmaking Lenders with respect to the day-to-day operations of the Properties will be delegated Borrowing Base Property. Lenders agree not to management and leasing agents. All agreements with such management and leasing agents will be subject to the unreasonably withhold or delay their approval of the Required Lenders. The daya Post-to-day supervision of such agents shall be done by the Administrative Agent.
(iii) Except as provided in the following sentences, all decisions as to whether to sell the Collateral Pool Assets shall be subject to the approval of all the Lenders. Notwithstanding the foregoing, the Lenders agree that if the Administrative Agent receives a bona fide "all cash" offer from an entity not affiliated with the Borrower Foreclosure Plan or any Lender for third party offer to purchase the Borrowing Base Property. An offer to purchase the Borrowing Base Property or any portion thereof at a gross purchase price of any of the Collateral Pool Assets and such offer equals or exceeds ninety ninety-five percent (9095%) of the most recent appraised fair market value of such Collateral Pool Asset property as established by an appraisal prepared set forth in accordance with the standards established in this Agreement that has been completed within six months of such offera current appraisal, then the Administrative Agent shall give written notice of such offer to the Lenders and request their approval for sale at such a price. If the Required Lenders approve of such a sale (or are be deemed to approve of such be a sale) then the Administrative Agent, acting on behalf of the Lenders, is irrevocably authorized to accept such reasonable offer.
(iv) All expenses incurred by the Administrative Agent and Lenders in connection with the ownership, operation, maintenance, marketing and sale of the Collateral Pool Assets shall be allocated among the Lenders pro rata in accordance with their respective Percentages.
(v) All expenditures and other actions taken with respect to the Collateral Pool Assets shall at all times be subject to the regulations and requirements pertaining to national banks applicable thereto. Without limiting the generality of the foregoing, all necessary approvals from regulatory authorities in connection with any expenditure of funds by the Lenders shall be a condition to such expenditure.
Appears in 1 contract
Sources: Credit Agreement (Creative Media & Community Trust Corp)
Foreclosure. The Lenders hereby agree If a Default shall have occurred and be continuing, Collateral Agent shall be entitled to the following proceed to foreclose this Mortgage in the event manner provided by law for the foreclosure of foreclosure under any of the Mortgages or any other attempt at realization of the security thereunder:
(a) To subscribe to and accept its Percentage of the ownership interests in any entity organized to hold title to the Collateral Pool Assets and that the nature of such entity shall be determined by the Required Lenders, subject to each Lender's right to hold its interests in such entity inmortgages, and assign such interests to, any affiliate of such Lender or any other entity required by laws or regulations governing such Lender. The Administrative Agent is hereby authorized to act for and on behalf of cause the Lenders in all day-to-day matters with respect to the exercise of rights described herein such as the supervision of attorneys, accountants, appraisers or others acting for the benefit of all of the Lenders in connection with litigation, foreclosure or realization sale of all or any security given portion of the Property for cash or upon such terms and conditions as Collateral for Agent may deem expedient, under the Obligations judgment or other similar actions.
(b) decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys' fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If the Lenders acquire the Collateral Pool Assets either by foreclosure or deed in lieu of foreclosurea Default shall have occurred and be continuing, to negotiate in good faith to reach agreement in writing relating to the ownershipextent permitted under applicable law, operation, maintenance, marketing and sale of such Collateral Pool Assets and that such agreement Agent shall be consistent entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the following:
(i) The Collateral Pool Assets will not be held as Property, by publication in a long-term investment but will be marketed newspaper published in an attempt the county or counties wherein the Property or any part thereof is located, to sell them in a time period consistent with the regulations applicable to national banks for owning real estate. Current appraisals of the Property (or such part or parts thereof as Collateral Properties shall be obtained by the Administrative Agent may from time to time during elect to sell) in front of such county's main or front courthouse door, at public outcry, to the ownership period at Lenders' expense (without diminishing highest bidder for cash. At any foreclosure sale, any part or releasing any obligation all of the Borrower Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to pay be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such costs) proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and an appraised value the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be established deemed a tenant holding over and updated shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time based on any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such appraisals.
(ii) Certain decisionmaking with respect sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the day-to-day operations of the Properties will be delegated to management and leasing agents. All agreements with such management and leasing agents will be subject to the approval of the Required Lenders. The day-to-day supervision of such agents same shall be done so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Administrative Agent.
(iii) Except as provided in the following sentences, all decisions as to whether to sell the Collateral Pool Assets shall be subject to the approval of all the Lenders. Notwithstanding the foregoing, the Lenders agree that if the Administrative Agent receives a bona fide "all cash" offer from an entity not affiliated with the Borrower Property or any Lender part thereof and in lieu of paying cash therefor may make settlement for the purchase of any price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the Collateral Pool Assets sale and such offer equals or exceeds ninety percent (90%) the costs of the most recent appraised value of such action and any other sums which Collateral Pool Asset as established by an appraisal prepared in accordance with the standards established in this Agreement that has been completed within six months of such offer, then the Administrative Agent shall give written notice of such offer to the Lenders and request their approval for sale at such a price. If the Required Lenders approve of such a sale (or are deemed to approve of such a sale) then the Administrative Agent, acting on behalf of the Lenders, is irrevocably authorized to accept such offerdeduct under this Mortgage.
(iv) All expenses incurred by the Administrative Agent and Lenders in connection with the ownership, operation, maintenance, marketing and sale of the Collateral Pool Assets shall be allocated among the Lenders pro rata in accordance with their respective Percentages.
(v) All expenditures and other actions taken with respect to the Collateral Pool Assets shall at all times be subject to the regulations and requirements pertaining to national banks applicable thereto. Without limiting the generality of the foregoing, all necessary approvals from regulatory authorities in connection with any expenditure of funds by the Lenders shall be a condition to such expenditure.
Appears in 1 contract
Sources: Leasehold Mortgage (Golfsmith International Holdings Inc)
Foreclosure. The Lenders hereby agree to the following in In the event of foreclosure under any of the Mortgages or any other attempt at realization of the security thereunder:
(a) To subscribe to and accept its Percentage of the ownership interests in any entity organized to hold title to the Collateral Pool Assets and that the nature of such entity shall be determined by the Required Lenders, subject to each Lender's right to hold its interests in such entity in, and assign such interests to, any affiliate of such Lender or any other entity required by laws or regulations governing such Lender. The Administrative Agent is hereby authorized to act for and on behalf of the Lenders in all day-to-day matters with respect to the exercise of rights described herein such as the supervision of attorneys, accountants, appraisers or others acting for the benefit of all of the Lenders in connection with litigation, foreclosure or realization of all or any security given as Collateral for the Obligations or other similar actions.
(b) If the Lenders acquire portion of the Collateral Pool Assets either (the “Collateral Property”) is acquired by Administrative Agent as the result of a foreclosure or acceptance of a deed or assignment in lieu of foreclosure, or is retained in satisfaction of all or any part of the Obligations, title to negotiate any such Collateral Property or any portion thereof shall be held in good faith to reach agreement the name of Administrative Agent or a nominee or subsidiary of Administrative Agent, as agent, for the benefit of the Lenders, or in writing relating an entity co-owned by the Lenders as determined by the Administrative Agent. Administrative Agent shall prepare a recommended course of action (the “Post-Foreclosure Plan”) for such Collateral Property and any real property owned by the entities that are Collateral Property (such real property, the “Real Estate Property”) and submit it to the ownershipLenders for approval by the Required Lenders. In the event that Administrative Agent does not obtain the approval of the Required Lenders to such Post-Foreclosure Plan, operationany Lender shall be permitted to submit an alternative Post-Foreclosure Plan to Administrative Agent, maintenanceand Administrative Agent shall submit any and all such additional Post-Foreclosure Plan(s) to the Lenders for evaluation and the approval by the Required Lenders. In accordance with the approved Post-Foreclosure Plan, marketing Administrative Agent shall manage, operate, repair, administer, complete, construct, restore or otherwise deal with the Collateral Property acquired and Real Estate Property and administer all transactions relating thereto, including, without limitation, employing a management agent, leasing agent and other agents, contractors and employees, including agents for the sale of such Collateral Pool Assets Property and/or Real Estate Property, and that the collecting of rents and other sums from such agreement Collateral Property and/or Real Estate Property and paying the expenses of such Collateral Property and Real Estate Property. Upon demand therefor from time to time, each Lender will contribute its ratable share (based on their respective Commitments immediately prior to the termination thereof) of all reasonable costs and expenses incurred by Administrative Agent pursuant to the Post-Foreclosure Plan in connection with the construction, operation, management, maintenance, leasing and sale of the Collateral Property and Real Estate Property. In addition, Administrative Agent shall render or cause to be rendered by the managing agent, to each of the Lenders, monthly, an income and expense statement for such Collateral Property and Real Estate Property, and each of the Lenders shall promptly contribute its ratable share (based on their respective Commitments immediately prior to the termination thereof) of any operating loss for the Collateral Property and Real Estate Property, and such other expenses and operating reserves as Administrative Agent shall deem reasonably necessary pursuant to and in accordance with the Post-Foreclosure Plan. To the extent there is net operating income from such Collateral Property and/or Real Estate Property, Administrative Agent shall, in accordance with the Post-Foreclosure Plan, determine the amount and timing of distributions to the Lenders. All such distributions shall be consistent with made to the following:
(i) Lenders in proportion to their respective Commitments immediately prior to the termination thereof. The Lenders acknowledge that if title to any Collateral Pool Assets Property and/or Real Estate Property is obtained by Administrative Agent or its nominee, or an entity co-owned by the Lenders, such Collateral Property will not be held as a long-term permanent investment but will be marketed in an attempt to sell them in disposed of as soon as practicable and within a time period consistent with the regulations applicable to national banks for owning real estate. Current appraisals of the Collateral Properties shall be obtained by the Administrative Agent from time shall undertake to time during the ownership period sell such Collateral Property and/or Real Estate Property at Lenders' expense (without diminishing or releasing any obligation of the Borrower to pay for such costs) price and an appraised value shall be established upon such terms and updated from time to time based on such appraisals.
(ii) Certain decisionmaking with respect to the day-to-day operations of the Properties will be delegated to management and leasing agents. All agreements with such management and leasing agents will be subject to the approval of conditions as the Required LendersLenders shall reasonably determine to be most advantageous. The day-to-day supervision Any purchase money mortgage or deed of such agents shall be done by the Administrative Agent.
(iii) Except as provided trust taken in the following sentences, all decisions as to whether to sell the Collateral Pool Assets shall be subject to the approval of all the Lenders. Notwithstanding the foregoing, the Lenders agree that if the Administrative Agent receives a bona fide "all cash" offer from an entity not affiliated connection with the Borrower or any Lender for the purchase of any of the Collateral Pool Assets and such offer equals or exceeds ninety percent (90%) of the most recent appraised value disposition of such Collateral Pool Asset as established by an appraisal prepared Property and/or Real Estate Property in accordance with the standards established in this Agreement that has been completed within six months of such offer, then the Administrative Agent immediately preceding sentence shall give written notice of such offer to the Lenders and request their approval for sale at such a price. If the Required Lenders approve of such a sale (or are deemed to approve of such a sale) then the name Administrative Agent, acting on behalf of as agent for the Lenders, is irrevocably authorized to accept as the beneficiary or mortgagee. In such offer.
(iv) All expenses incurred by the case, Administrative Agent and the Lenders shall enter into an agreement with respect to such purchase money mortgage defining the rights of the Lenders in connection with the ownershipsame, operation, maintenance, marketing and sale which agreement shall be in all material respects similar to the rights of the Collateral Pool Assets shall be allocated among the Lenders pro rata in accordance with their respective Percentages.
(v) All expenditures and other actions taken with respect to the Collateral Pool Assets shall Property and/or Real Estate Property. Lenders agree not to unreasonably withhold or delay their approval of a Post-Foreclosure Plan or any third party offer to purchase the Collateral Property and/or Real Estate Property. An offer to purchase the Collateral Property and/or Real Estate Property at all times be subject to the regulations and requirements pertaining to national banks applicable thereto. Without limiting the generality a gross purchase price of 95% of the foregoingfair market value of the property as set forth in a current appraisal reasonably acceptable to Administrative Agent and Required Lenders, all necessary approvals from regulatory authorities in connection with any expenditure of funds by the Lenders shall be deemed to be a condition reasonable offer. Notwithstanding any other provision of this Section 9.11, in no event will Administrative Agent be required to such expendituretake any action that Administrative Agent determines could subject it to any liabilities (including by deemed assumption of Loan Party liabilities) under any Lien or Encumbrance.
Appears in 1 contract
Foreclosure. The Lenders hereby agree to Agent may institute an action of mortgage foreclosure, or take such other action at law or in equity for the following in enforcement of this Mortgage and realization on the event of foreclosure under any of the Mortgages mortgage security or any other attempt at realization security herein or elsewhere provided for, as the law may allow, and may proceed therein to final judgment and execution for the entire unpaid balance of the security thereunder:
(aprincipal debt, with interest at the rate(s) To subscribe to and accept its Percentage of the ownership interests in any entity organized to hold title to the Collateral Pool Assets and that the nature of such entity shall be determined by the Required Lenders, subject to each Lender's right to hold its interests in such entity in, and assign such interests to, any affiliate of such Lender or any other entity required by laws or regulations governing such Lender. The Administrative Agent is hereby authorized to act for and on behalf of the Lenders in all day-to-day matters with respect to the exercise of rights described herein such as the supervision of attorneys, accountants, appraisers or others acting for the benefit of all of the Lenders in connection with litigation, foreclosure or realization of all or any security given as Collateral for the Obligations or other similar actions.
(b) If the Lenders acquire the Collateral Pool Assets either by foreclosure or deed in lieu of foreclosure, to negotiate in good faith to reach agreement in writing relating to the ownership, operation, maintenance, marketing and sale of such Collateral Pool Assets and that such agreement shall be consistent with the following:
(i) The Collateral Pool Assets will not be held as a long-term investment but will be marketed in an attempt to sell them in a time period consistent with the regulations applicable to national banks for owning real estate. Current appraisals of the Collateral Properties shall be obtained by the Administrative Agent from time to time during the ownership period at Lenders' expense (without diminishing or releasing any obligation of the Borrower to pay for such costs) and an appraised value shall be established and updated from time to time based on such appraisals.
(ii) Certain decisionmaking with respect to the day-to-day operations of the Properties will be delegated to management and leasing agents. All agreements with such management and leasing agents will be subject to the approval of the Required Lenders. The day-to-day supervision of such agents shall be done by the Administrative Agent.
(iii) Except as provided stipulated in the following sentencesLoan Agreement, together with all decisions as to whether to sell the Collateral Pool Assets shall be subject to the approval of all the Lenders. Notwithstanding the foregoing, the Lenders agree that if the Administrative Agent receives a bona fide "all cash" offer other sums due from an entity not affiliated with the Borrower or any Lender for the purchase of any of the Collateral Pool Assets and such offer equals or exceeds ninety percent (90%) of the most recent appraised value of such Collateral Pool Asset as established by an appraisal prepared Mortgagor in accordance with the standards established provisions of the Loan Agreement, including all sums which may have been loaned by Agent to Mortgagor after the date of this Mortgage, all sums which may have been advanced by Agent to Mortgagor after the date of this Mortgage, all sums which may have been advanced by Agent for taxes, water or sewer rents, other lienable charges or claims, insurance or repairs or maintenance after the date of this Mortgage (including the period after the entry of any judgment in mortgage foreclosure or other judgment entered pursuant to this Agreement that has been completed within six months Mortgage or the Loan Agreement), and all costs of such offersuit, then the Administrative including counsel fees (as permitted by applicable law). Mortgagor authorizes Agent shall give written notice of such offer at its option to foreclose this Mortgage subject to the Lenders rights of any tenants of the Mortgaged Property, and request the failure to make any such tenants parties defendant to any such foreclosure proceedings and to foreclose their approval for rights will not be asserted by Mortgagor as a defense to any proceedings instituted by Agent to recover the indebtedness secured hereby or any deficiency remaining unpaid after the foreclosure sale of the Mortgaged Property; however, nothing herein contained shall prevent Mortgagor from asserting in any proceedings disputing the amount of the deficiency or the sufficiency of any bid at such a price. If foreclosure sale that any such tenants adversely affect the Required Lenders approve of such a sale (or are deemed to approve of such a sale) then the Administrative Agent, acting on behalf value of the Lenders, is irrevocably authorized to accept such offer.
(iv) All expenses incurred by the Administrative Agent and Lenders in Mortgaged Property. In connection with the ownershipexercise of Agent’s rights above, operationMortgagor hereby authorizes and empowers any attorney of any court of record in the Commonwealth of Pennsylvania or elsewhere, maintenanceas attorney for Agent and all persons claiming under or through Agent, marketing to appear for and confess judgment in ejectment against Mortgagor for the possession of the Mortgaged Property and to appear for and confess judgment against Mortgagor and against all persons claiming under or through Mortgagor, in favor of Agent, for recovery by Agent of possession thereof, for which this Mortgage, or a copy thereof verified by affidavit, shall be a sufficient warrant; and thereupon a writ of possession may immediately issue for possession of the Mortgaged Property, without any prior writ or proceeding whatsoever and without any stay of execution. If for any reason after such action has been commenced it shall be discontinued, or possession of the Mortgaged Property shall remain in or be restored to Mortgagor, Agent shall have the right for the same default or any subsequent default to bring one or more further actions as above provided to recover possession of the Mortgaged Property. Agent may confess judgment in ejectment therein before or after the institution of proceedings to foreclose this Mortgage or to enforce the Loan Documents, or after entry of judgment on this Mortgage or on the other Loan Documents executed in connection therewith, or after a sheriff’s sale of the Collateral Pool Assets shall be allocated among Mortgaged Property in which Agent or any Lender is the Lenders pro rata in accordance with their respective Percentages.
(v) All expenditures and other actions taken with respect successful bidder. The authorization to the Collateral Pool Assets shall at all times be subject to the regulations and requirements pertaining to national banks applicable thereto. Without limiting the generality pursue such proceedings for obtaining possession is an essential part of the foregoingenforcement of this Mortgage, all necessary approvals from regulatory authorities in connection with or the other Loan Documents, and shall survive any expenditure of funds by the Lenders shall be a condition execution sale to such expenditureAgent.
Appears in 1 contract
Foreclosure. The Lenders hereby agree to the following in In the event of foreclosure under any of the Mortgages or any other attempt at realization of the security thereunder:
(a) To subscribe to and accept its Percentage of the ownership interests in any entity organized to hold title to the Collateral Pool Assets and that the nature of such entity shall be determined by the Required Lenders, subject to each Lender's right to hold its interests in such entity in, and assign such interests to, any affiliate of such Lender or any other entity required by laws or regulations governing such Lender. The Administrative Agent is hereby authorized to act for and on behalf of the Lenders in all day-to-day matters with respect to the exercise of rights described herein such as the supervision of attorneys, accountants, appraisers or others acting for the benefit of all of the Lenders in connection with litigation, foreclosure or realization of all or any security given portion of any Project is acquired by Administrative Agent as Collateral for the Obligations or other similar actions.
(b) If the Lenders acquire the Collateral Pool Assets either by result of a foreclosure or acceptance of a deed or assignment in lieu of foreclosure, or is retained in satisfaction of all or any part of the Obligations, title to negotiate the Project or any portion thereof will be held in good faith the name of Administrative Agent or a nominee or subsidiary of Administrative Agent, as agent, for the benefit of itself and the Lenders, or in an entity co-owned by the Lenders as determined by Administrative Agent. Administrative Agent will prepare a recommended course of action for the Project (the "Post-Foreclosure Plan") and submit it to reach agreement in writing the Lenders for approval by the Required Lenders. In the absence of an approved Post Foreclosure Plan, Administrative Agent may make such decisions and incur such expenses relating to the ownership, operation, maintenance and marketing of the Project, and the Lenders must reimburse and indemnify Administrative Agent for any such decisions in accordance with Section 9.10. In the event that Administrative Agent will not obtain the approval of the Required Lenders to such Post-Foreclosure Plan, any Lender will be permitted to submit an alternative Post-Foreclosure Plan to Administrative Agent, and Administrative Agent will submit any and all such additional Post-Foreclosure Plan(s) to the Lenders for evaluation and the approval by the Required Lenders. In accordance with the approved Post-Foreclosure Plan, Administrative Agent will manage, operate, repair, administer, complete, construct, restore or otherwise deal with the Project acquired and administer all transactions relating thereto, including, without limitation, employing a management agent, leasing agent and other agents, contractors and employees, including agents for the sale of the Project, and the collecting of rents and other sums from the Project and paying the expenses of the Project. Upon demand therefor from time to time, each Lender will contribute its Pro Rata Share of all reasonable costs and expenses incurred by Administrative Agent pursuant to the Post-Foreclosure Plan in connection with the construction, operation, management, maintenance, marketing leasing and sale of the Project. In addition, Administrative Agent will render or cause to be rendered by the managing agent, to each of the Lenders, monthly, an income and expense statement for the Project, and each of the Lenders must promptly contribute its Pro Rata Share of any operating loss for the Project, and such Collateral Pool Assets other expenses and that such agreement shall be consistent operating reserves as Administrative Agent deems reasonably necessary pursuant to and in accordance with the following:
(i) Post-Foreclosure Plan. To the extent there is net operating income from the Project, Administrative Agent will, in accordance with the Post-Foreclosure Plan, determine the amount and timing of distributions to the Lenders. All such distributions will be made to the Lenders in proportion to their Pro Rata Share. The Collateral Pool Assets Lenders acknowledge that if title to the Project is obtained by Administrative Agent or its nominee, or an entity co-owned by the Lenders, the Project will not be held as a long-term permanent investment but will be marketed in an attempt to sell them in disposed of as soon as practicable and within a time period consistent with the regulations applicable to national banks for owning real estate. Current appraisals Administrative Agent will undertake to sell the Project at such price and upon such terms and conditions as the Required Lenders reasonably determine to be most advantageous. Any purchase money mortgage or deed of trust taken in connection with the disposition of the Collateral Properties shall be obtained by Project in accordance with the immediately preceding sentence will name Administrative Agent, as agent for the Lenders, as the beneficiary or mortgagee. In such case, Administrative Agent from time and the Lenders will enter into an agreement with respect to time during such purchase money mortgage defining the ownership period at Lenders' expense (without diminishing or releasing any obligation rights of the Borrower Lenders in the same, which agreement will be in all material respects similar to pay for such costs) and an appraised value shall be established and updated from time to time based on such appraisals.
(ii) Certain decisionmaking the rights of the Lenders with respect to the dayProject. The Lenders agree not to unreasonably withhold or delay their approval of a Post-to-day operations Foreclosure Plan or any third party offer to purchase the Project. An offer to purchase the Project at a gross purchase price of 95% of the Properties fair market value of the Project as set forth in a current appraisal, will be delegated to management and leasing agents. All agreements with such management and leasing agents will be subject to the approval of the Required Lenders. The day-to-day supervision of such agents shall be done by the Administrative Agent.
(iii) Except as provided in the following sentences, all decisions as to whether to sell the Collateral Pool Assets shall be subject to the approval of all the Lenders. Notwithstanding the foregoing, the Lenders agree that if the Administrative Agent receives a bona fide "all cash" offer from an entity not affiliated with the Borrower or any Lender for the purchase of any of the Collateral Pool Assets and such offer equals or exceeds ninety percent (90%) of the most recent appraised value of such Collateral Pool Asset as established by an appraisal prepared in accordance with the standards established in this Agreement that has been completed within six months of such offer, then the Administrative Agent shall give written notice of such offer to the Lenders and request their approval for sale at such a price. If the Required Lenders approve of such a sale (or are deemed to approve of such be a sale) then the Administrative Agent, acting on behalf of the Lenders, is irrevocably authorized to accept such reasonable offer.
(iv) All expenses incurred by the Administrative Agent and Lenders in connection with the ownership, operation, maintenance, marketing and sale of the Collateral Pool Assets shall be allocated among the Lenders pro rata in accordance with their respective Percentages.
(v) All expenditures and other actions taken with respect to the Collateral Pool Assets shall at all times be subject to the regulations and requirements pertaining to national banks applicable thereto. Without limiting the generality of the foregoing, all necessary approvals from regulatory authorities in connection with any expenditure of funds by the Lenders shall be a condition to such expenditure.
Appears in 1 contract
Sources: Term Loan Agreement (KBS Real Estate Investment Trust III, Inc.)
Foreclosure. The Lenders hereby agree If a Default shall have occurred and be continuing, Collateral Agent shall be entitled to the following proceed to foreclose this Mortgage in the event manner provided by law for the foreclosure of foreclosure under any of the Mortgages or any other attempt at realization of the security thereunder:
(a) To subscribe to and accept its Percentage of the ownership interests in any entity organized to hold title to the Collateral Pool Assets and that the nature of such entity shall be determined by the Required Lenders, subject to each Lender's right to hold its interests in such entity inmortgages, and assign such interests to, any affiliate of such Lender or any other entity required by laws or regulations governing such Lender. The Administrative Agent is hereby authorized to act for and on behalf of cause the Lenders in all day-to-day matters with respect to the exercise of rights described herein such as the supervision of attorneys, accountants, appraisers or others acting for the benefit of all of the Lenders in connection with litigation, foreclosure or realization sale of all or any security given portion of the Property for cash or upon such terms and conditions as Collateral for Agent may deem expedient, under the Obligations judgment or other similar actions.
(b) decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys' fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If the Lenders acquire the Collateral Pool Assets either by foreclosure or deed in lieu of foreclosurea Default shall have occurred and be continuing, to negotiate in good faith to reach agreement in writing relating to the ownershipextent permitted under applicable law, operation, maintenance, marketing and sale of such Collateral Pool Assets and that such agreement Agent shall be consistent entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the following:
(i) The Collateral Pool Assets will not be held as Property, by publication in a long-term investment but will be marketed newspaper published in an attempt the county or counties wherein the Property or any part thereof is located, to sell them in a time period consistent with the regulations applicable to national banks for owning real estate. Current appraisals of the Property (or such part or parts thereof as Collateral Properties shall be obtained by the Administrative Agent may from time to time during elect to sell) in front of such county's main or front courthouse door, at public outcry, to the ownership period at Lenders' expense (without diminishing highest bidder for cash. At any foreclosure sale, any part or releasing any obligation all of the Borrower Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to pay be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such costs) proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and an appraised value the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be established deemed a tenant holding over and updated shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time based on any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such appraisals.
(ii) Certain decisionmaking with respect sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the day-to-day operations of the Properties will be delegated to management and leasing agents. All agreements with such management and leasing agents will be subject to the approval of the Required Lenders. The day-to-day supervision of such agents same shall be done so adjourned. Upon any sale made under or by virtue of this Section 3.04. Collateral Agent may bid for and acquire the Administrative Agent.
(iii) Except as provided in the following sentences, all decisions as to whether to sell the Collateral Pool Assets shall be subject to the approval of all the Lenders. Notwithstanding the foregoing, the Lenders agree that if the Administrative Agent receives a bona fide "all cash" offer from an entity not affiliated with the Borrower Property or any Lender part thereof and in lieu of paying cash therefor may make settlement for the purchase of any price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the Collateral Pool Assets sale and such offer equals or exceeds ninety percent (90%) the costs of the most recent appraised value of such action and any other sums which Collateral Pool Asset as established by an appraisal prepared in accordance with the standards established in this Agreement that has been completed within six months of such offer, then the Administrative Agent shall give written notice of such offer to the Lenders and request their approval for sale at such a price. If the Required Lenders approve of such a sale (or are deemed to approve of such a sale) then the Administrative Agent, acting on behalf of the Lenders, is irrevocably authorized to accept such offerdeduct under this Mortgage.
(iv) All expenses incurred by the Administrative Agent and Lenders in connection with the ownership, operation, maintenance, marketing and sale of the Collateral Pool Assets shall be allocated among the Lenders pro rata in accordance with their respective Percentages.
(v) All expenditures and other actions taken with respect to the Collateral Pool Assets shall at all times be subject to the regulations and requirements pertaining to national banks applicable thereto. Without limiting the generality of the foregoing, all necessary approvals from regulatory authorities in connection with any expenditure of funds by the Lenders shall be a condition to such expenditure.
Appears in 1 contract
Sources: Leasehold Mortgage (Golfsmith International Holdings Inc)
Foreclosure. The Lenders hereby agree to the following in In the event of foreclosure under any of the Mortgages or any other attempt at realization of the security thereunder:
(a) To subscribe to and accept its Percentage of the ownership interests in any entity organized to hold title to the Collateral Pool Assets and that the nature of such entity shall be determined by the Required Lenders, subject to each Lender's right to hold its interests in such entity in, and assign such interests to, any affiliate of such Lender or any other entity required by laws or regulations governing such Lender. The Administrative Agent is hereby authorized to act for and on behalf of the Lenders in all day-to-day matters with respect to the exercise of rights described herein such as the supervision of attorneys, accountants, appraisers or others acting for the benefit of all of the Lenders in connection with litigation, foreclosure or realization of all or any security given portion of the Mortgaged Property is acquired by Administrative Agent as Collateral for the Obligations or other similar actions.
(b) If the Lenders acquire the Collateral Pool Assets either by result of a foreclosure or acceptance of a deed or assignment in lieu of foreclosure, or is retained in satisfaction of all or any part of the Indebtedness, title to negotiate any such Mortgaged Property or any portion thereof shall be held in good faith to reach agreement the name of Administrative Agent or a subsidiary or other designee of Administrative Agent, as nominee for the benefit of the Lenders, or in writing relating an entity co-owned by the Lenders as determined by Administrative Agent. Administrative Agent shall prepare a recommended course of action for such Mortgaged Property (the “Post-Foreclosure Plan”) and submit it to the ownershipLenders for approval by the Required Lenders. In the event that Administrative Agent does not obtain the approval of the Required Lenders to such Post-Foreclosure Plan, any Lender shall be permitted to submit an alternative Post-Foreclosure Plan to Administrative Agent, and Administrative Agent shall submit any and all such additional Post-Foreclosure Plan(s) to the Lenders for evaluation and the approval by the Required Lenders. In accordance with the approved Post-Foreclosure Plan, Administrative Agent shall manage, operate, repair, administer, complete, construct, restore or otherwise deal with the Mortgaged Property acquired and administer all transactions relating thereto, including, without limitation, employing a management agent, leasing agent and other agents, contractors and employees, including agents for the sale of such Mortgaged Property, and the collecting of rents and other sums from such Mortgaged Property and paying the expenses of such Mortgaged Property. Upon demand therefor from time to time, each Lender will contribute its ratable share (based on their respective Commitments immediately prior to the termination thereof) of all reasonable costs and expenses incurred by Administrative Agent pursuant to the Post-Foreclosure Plan in connection with the construction, operation, management, maintenance, marketing leasing and sale of the Mortgaged Property. In addition, Administrative Agent shall render or cause to be rendered by the managing agent, to each of the Lenders, monthly, an income and expense statement for such Collateral Pool Assets Mortgaged Property, and that each of the Lenders shall promptly contribute its ratable share (based on their respective Commitments immediately prior to the termination thereof) of any operating loss for the Mortgaged Property, and such agreement other expenses and operating reserves as Administrative Agent shall deem reasonably necessary pursuant to and in accordance with the Post-Foreclosure Plan. To the extent there is net operating income from such Mortgaged Property, Administrative Agent shall, in accordance with the Post-Foreclosure Plan, determine the amount and timing of distributions to the Lenders. All such distributions shall be consistent with made to the following:
(i) Lenders in proportion to their respective Commitments immediately prior to the termination thereof. The Collateral Pool Assets Lenders acknowledge that if title to any Mortgaged Property is obtained by Administrative Agent or its subsidiary or designee, or an entity co-owned by the Lenders, such Mortgaged Property will not be held as a long-term permanent investment but will be marketed in an attempt to sell them in disposed of as soon as practicable and within a time period consistent with the regulations applicable to national banks for owning real estate. Current appraisals of the Collateral Properties shall be obtained by the Administrative Agent from time shall undertake to time during the ownership period sell such Mortgaged Property at Lenders' expense (without diminishing or releasing any obligation of the Borrower to pay for such costs) price and an appraised value shall be established upon such terms and updated from time to time based on such appraisals.
(ii) Certain decisionmaking with respect to the day-to-day operations of the Properties will be delegated to management and leasing agents. All agreements with such management and leasing agents will be subject to the approval of conditions as the Required LendersLenders shall reasonably determine to be most advantageous. The day-to-day supervision Any purchase money mortgage or deed of trust taken in connection with the disposition of such agents shall be done by the Administrative Agent.
(iii) Except as provided in the following sentences, all decisions as to whether to sell the Collateral Pool Assets shall be subject to the approval of all the Lenders. Notwithstanding the foregoing, the Lenders agree that if the Administrative Agent receives a bona fide "all cash" offer from an entity not affiliated with the Borrower or any Lender for the purchase of any of the Collateral Pool Assets and such offer equals or exceeds ninety percent (90%) of the most recent appraised value of such Collateral Pool Asset as established by an appraisal prepared Mortgaged Property in accordance with the standards established in this Agreement that has been completed within six months of such offer, then the Administrative Agent immediately preceding sentence shall give written notice of such offer to the Lenders and request their approval for sale at such a price. If the Required Lenders approve of such a sale (or are deemed to approve of such a sale) then the name Administrative Agent, acting on behalf of as agent for the Lenders, is irrevocably authorized to accept as the beneficiary or mortgagee. In such offer.
(iv) All expenses incurred by the case, Administrative Agent and Lenders in connection with the ownership, operation, maintenance, marketing and sale of the Collateral Pool Assets shall be allocated among the Lenders pro rata in accordance with their respective Percentages.
(v) All expenditures and other actions taken shall enter into an agreement with respect to such purchase money mortgage defining the Collateral Pool Assets shall at all times be subject to the regulations and requirements pertaining to national banks applicable thereto. Without limiting the generality of the foregoing, all necessary approvals from regulatory authorities in connection with any expenditure of funds by the Lenders shall be a condition to such expenditure.rights 128
Appears in 1 contract
Sources: Loan Agreement (Alexanders Inc)
Foreclosure. The Lenders hereby agree to the following in In the event of foreclosure under any of the Mortgages or any other attempt at realization of the security thereunder:
(a) To subscribe to and accept its Percentage of the ownership interests in any entity organized to hold title to the Collateral Pool Assets and that the nature of such entity shall be determined by the Required Lenders, subject to each Lender's right to hold its interests in such entity in, and assign such interests to, any affiliate of such Lender or any other entity required by laws or regulations governing such Lender. The Administrative Agent is hereby authorized to act for and on behalf of the Lenders in all day-to-day matters with respect to the exercise of rights described herein such as the supervision of attorneys, accountants, appraisers or others acting for the benefit of all of the Lenders in connection with litigation, foreclosure or realization of all or any security given portion of any Mortgaged Property is acquired by Administrative Agent as Collateral for the Obligations or other similar actions.
(b) If the Lenders acquire the Collateral Pool Assets either by result of a foreclosure or acceptance of a deed or assignment in lieu of foreclosure, or is retained in satisfaction of all or any part of the Obligations, title to negotiate any such Mortgaged Property or any portion thereof shall be held in good faith to reach agreement the name of Administrative Agent or a nominee or subsidiary of Administrative Agent, as agent, for the benefit of the Lenders, or in writing relating an entity co-owned by the Lenders as determined by Administrative Agent. Administrative Agent shall prepare a recommended course of action for such Mortgaged Property (the “Post-Foreclosure Plan”) and submit it to the ownershipLenders for approval by the Required Lenders. In the event that Administrative Agent does not obtain the approval of the Required Lenders to such Post-Foreclosure Plan, any Lender shall be permitted to submit an alternative Post-Foreclosure Plan to Administrative Agent, and Administrative Agent shall submit any and all such additional Post-Foreclosure Plan(s) to the Lenders for evaluation and the approval by the Required Lenders. In accordance with the approved Post-Foreclosure Plan, Administrative Agent shall manage, operate, repair, administer, complete, construct, restore or otherwise deal with the Mortgaged Property acquired and administer all transactions relating thereto, including, without limitation, employing a management agent, leasing agent and other agents, contractors and employees, including agents for the sale of such Mortgaged Property, and the collecting of rents and other sums from such Mortgaged Property and paying the expenses of such Mortgaged Property. Upon demand therefor from time to time, each Lender will contribute its ratable share (based on their respective Commitments immediately prior to the termination thereof) of all reasonable costs and expenses incurred by Administrative Agent pursuant to the Post-Foreclosure Plan in connection with the construction, operation, management, maintenance, marketing leasing and sale of the Mortgaged Property. In addition, Administrative Agent shall render or cause to be rendered by the managing agent, to each of the Lenders, monthly, an income and expense statement for such Collateral Pool Assets Mortgaged Property, and that each of the Lenders shall promptly contribute its ratable share (based on their respective Commitments immediately prior to the termination thereof) of any operating loss for the Mortgaged Property, and such agreement other expenses and operating reserves as Administrative Agent shall deem reasonably necessary pursuant to and in accordance with the Post-Foreclosure Plan. To the extent there is net operating income from such Mortgaged Property, Administrative Agent shall, in accordance with the Post-Foreclosure Plan, determine the amount and timing of distributions to the Lenders. All such distributions shall be consistent with made to the following:
(i) Lenders in proportion to their respective Commitments immediately prior to the termination thereof. The Collateral Pool Assets Lenders acknowledge that if title to any Mortgaged Property is obtained by Administrative Agent or its nominee, or an entity co-owned by the Lenders, such Mortgaged Property will not be held as a long-term permanent investment but will be marketed in an attempt to sell them in disposed of as soon as practicable and within a time period consistent with the regulations applicable to national banks for owning real estate. Current appraisals Administrative Agent shall undertake to sell such Mortgaged Property at such price and upon such terms and conditions as the Required Lenders shall reasonably determine to be most advantageous. Any purchase money mortgage or deed of trust taken in connection with the disposition of such Mortgaged Property in accordance with the immediately preceding sentence shall name 99 Administrative Agent, as agent for the Lenders, as the beneficiary or mortgagee. In such case, Administrative Agent and the Lenders shall enter into an agreement with respect to such purchase money mortgage defining the rights of the Collateral Properties Lenders in the same, which agreement shall be obtained by in all material respects similar to the Administrative Agent from time to time during the ownership period at Lenders' expense (without diminishing or releasing any obligation rights of the Borrower to pay for such costs) and an appraised value shall be established and updated from time to time based on such appraisals.
(ii) Certain decisionmaking Lenders with respect to the dayMortgaged Property. Lenders agree not to unreasonably withhold or delay their approval of a Post-to-day operations Foreclosure Plan or any third party offer to purchase the Mortgaged Property. An offer to purchase the Mortgaged Property at a gross purchase price of 95% of the Properties will be delegated to management and leasing agents. All agreements with such management and leasing agents will be subject to the approval fair market value of the Required Lenders. The day-to-day supervision of such agents property as set forth in a current appraisal shall be done by the Administrative Agent.
(iii) Except as provided in the following sentences, all decisions as to whether to sell the Collateral Pool Assets shall be subject to the approval of all the Lenders. Notwithstanding the foregoing, the Lenders agree that if the Administrative Agent receives a bona fide "all cash" offer from an entity not affiliated with the Borrower or any Lender for the purchase of any of the Collateral Pool Assets and such offer equals or exceeds ninety percent (90%) of the most recent appraised value of such Collateral Pool Asset as established by an appraisal prepared in accordance with the standards established in this Agreement that has been completed within six months of such offer, then the Administrative Agent shall give written notice of such offer to the Lenders and request their approval for sale at such a price. If the Required Lenders approve of such a sale (or are deemed to approve of such be a sale) then the Administrative Agent, acting on behalf of the Lenders, is irrevocably authorized to accept such reasonable offer.
(iv) All expenses incurred by the Administrative Agent and Lenders in connection with the ownership, operation, maintenance, marketing and sale of the Collateral Pool Assets shall be allocated among the Lenders pro rata in accordance with their respective Percentages.
(v) All expenditures and other actions taken with respect to the Collateral Pool Assets shall at all times be subject to the regulations and requirements pertaining to national banks applicable thereto. Without limiting the generality of the foregoing, all necessary approvals from regulatory authorities in connection with any expenditure of funds by the Lenders shall be a condition to such expenditure.
Appears in 1 contract
Sources: Term Loan and Security Agreement (KBS Growth & Income REIT, Inc.)
Foreclosure. The Lenders hereby agree to the following in In the event of foreclosure under that all or any of the Mortgages or any other attempt at realization of the security thereunder:
(a) To subscribe to and accept its Percentage of the ownership interests in any entity organized to hold title to the Collateral Pool Assets and that the nature of such entity shall be determined Qualified Properties are acquired by the Required Lenders, subject to each Lender's right to hold its interests in such entity in, and assign such interests to, any affiliate of such Lender or any other entity required by laws or regulations governing such Lender. The Administrative Agent is hereby authorized to act for and on behalf of the Lenders in all day-to-day matters with respect to the exercise of rights described herein such as the supervision result of attorneys, accountants, appraisers or others acting for the benefit of all of the Lenders in connection with litigation, a foreclosure or realization acceptance of all a deed or any security given as Collateral for the Obligations or other similar actions.
(b) If the Lenders acquire the Collateral Pool Assets either by foreclosure or deed assignment in lieu of foreclosure, or is retained in satisfaction of all or any part of the Obligations (each a "Foreclosure Property"), title to negotiate any such Foreclosure Property or any portion thereof shall be held in good faith to reach agreement the name of Administrative Agent or a nominee or subsidiary of Administrative Agent, as agent, for the benefit of the Lenders, or in writing relating an entity co-owned by the Lenders as determined by Administrative Agent. Administrative Agent shall prepare a recommended course of action for such Foreclosure Property (the "Post-Foreclosure Plan") and submit it to the ownershipLenders for approval by the Required Lenders. In the event that Administrative Agent does not obtain the approval of the Required Lenders to such Post-Foreclosure Plan, any Lender shall be permitted to submit an alternative Post-Foreclosure Plan to Administrative Agent, and Administrative Agent shall submit any and all such additional Post-Foreclosure Plan(s) to the Lenders for evaluation and the approval by the Required Lenders. In accordance with the approved Post-Foreclosure Plan, Administrative Agent shall manage, operate, repair, administer, complete, construct, restore or otherwise deal with the Foreclosure Property acquired and administer all transactions relating thereto, including, without limitation, employing a management agent, leasing agent and other agents, contractors and employees, including agents for the sale of such Foreclosure Property, and the collecting of rents and other sums from such Foreclosure Property and paying the expenses of such Foreclosure Property. Upon demand therefor from time to time, each Lender will contribute its ratable share (based on their respective Commitment Amount Percentage) of all reasonable costs and expenses incurred by Administrative Agent pursuant to the Post-Foreclosure Plan in connection with the construction, operation, management, maintenance, marketing leasing and sale of the Foreclosure Property. In addition, Administrative Agent shall render or cause to be rendered by the managing agent, to each of the Lenders, monthly, an income and expense statement for such Collateral Pool Assets Foreclosure Property, and that each of the Lenders shall promptly contribute its ratable share (based on their respective Commitment Amount Percentage) of any operating loss for the Foreclosure Property, and such agreement other expenses and operating reserves as Administrative Agent shall deem reasonably necessary pursuant to and in accordance with the Post-Foreclosure Plan. To the extent there is net operating income from such Foreclosure Property, Administrative Agent shall, in accordance with the Post-Foreclosure Plan, determine the amount and timing of distributions to the Lenders. All such distributions shall be consistent with made to the following:
(i) Lenders in proportion to their respective Commitments immediately prior to the termination thereof. The Collateral Pool Assets Lenders acknowledge that if title to any Foreclosure Property is obtained by Administrative Agent or its nominee, or an entity co-owned by the Lenders, such Foreclosure Property will not be held as a long-term permanent investment but will be marketed in an attempt to sell them in disposed of as soon as practicable and within a time period consistent with the regulations applicable to national banks for owning real estate. Current appraisals Administrative Agent shall undertake to sell such Foreclosure Property at such price and upon such terms and conditions as the Required Lenders shall reasonably determine to be most advantageous. Any purchase money mortgage or deed of trust taken in connection with the disposition of such Foreclosure Property in accordance with the immediately preceding sentence shall name Administrative Agent, as agent for the Lenders, as the beneficiary or mortgagee. In such case, Administrative Agent and the Lenders shall enter into an agreement with respect to such purchase money mortgage defining the rights of the Collateral Properties Lenders in the same, which agreement shall be obtained by in all material respects similar to the Administrative Agent from time to time during the ownership period at Lenders' expense (without diminishing or releasing any obligation rights of the Borrower to pay for such costs) and an appraised value shall be established and updated from time to time based on such appraisals.
(ii) Certain decisionmaking Lenders with respect to the day-to-day operations of the Properties will be delegated Foreclosure Property. Lenders agree not to management and leasing agents. All agreements with such management and leasing agents will be subject to the unreasonably withhold or delay their approval of the Required Lenders. The daya Post-to-day supervision of such agents shall be done by the Administrative Agent.
(iii) Except as provided in the following sentences, all decisions as to whether to sell the Collateral Pool Assets shall be subject to the approval of all the Lenders. Notwithstanding the foregoing, the Lenders agree that if the Administrative Agent receives a bona fide "all cash" offer from an entity not affiliated with the Borrower Foreclosure Plan or any Lender for the purchase of any of the Collateral Pool Assets and such offer equals or exceeds ninety percent (90%) of the most recent appraised value of such Collateral Pool Asset as established by an appraisal prepared in accordance with the standards established in this Agreement that has been completed within six months of such offer, then the Administrative Agent shall give written notice of such third party offer to purchase the Lenders and request their approval for sale at such a price. If the Required Lenders approve of such a sale (or are deemed to approve of such a sale) then the Administrative Agent, acting on behalf of the Lenders, is irrevocably authorized to accept such offerForeclosure Property.
(iv) All expenses incurred by the Administrative Agent and Lenders in connection with the ownership, operation, maintenance, marketing and sale of the Collateral Pool Assets shall be allocated among the Lenders pro rata in accordance with their respective Percentages.
(v) All expenditures and other actions taken with respect to the Collateral Pool Assets shall at all times be subject to the regulations and requirements pertaining to national banks applicable thereto. Without limiting the generality of the foregoing, all necessary approvals from regulatory authorities in connection with any expenditure of funds by the Lenders shall be a condition to such expenditure.
Appears in 1 contract
Sources: Borrowing Base Revolving Line of Credit Agreement (Cole Credit Property Trust Iv, Inc.)
Foreclosure. The Lenders hereby agree to the following in In the event of foreclosure under any of the Mortgages or any other attempt at realization of the security thereunder:
(a) To subscribe to and accept its Percentage of the ownership interests in any entity organized to hold title to the Collateral Pool Assets and that the nature of such entity shall be determined by the Required Lenders, subject to each Lender's right to hold its interests in such entity in, and assign such interests to, any affiliate of such Lender or any other entity required by laws or regulations governing such Lender. The Administrative Agent is hereby authorized to act for and on behalf of the Lenders in all day-to-day matters with respect to the exercise of rights described herein such as the supervision of attorneys, accountants, appraisers or others acting for the benefit of all of the Lenders in connection with litigation, foreclosure or realization of all or any security given portion of the Mortgaged Property is acquired by Administrative Agent as Collateral for the Obligations or other similar actions.
(b) If the Lenders acquire the Collateral Pool Assets either by result of a foreclosure or acceptance of a deed or assignment in lieu of foreclosure, or is retained in satisfaction of all or any part of the Indebtedness, title to negotiate any such Mortgaged Property or any portion thereof shall be held in good faith to reach agreement the name of Administrative Agent or a subsidiary or other designee of Administrative Agent, as nominee for the benefit of the Lenders, or in writing relating an entity co-owned by the Lenders as determined by Administrative Agent. Administrative Agent shall prepare a recommended course of action for such Mortgaged Property (the “Post-Foreclosure Plan”) and submit it to the ownershipLenders for approval by the Required Lenders. In the event that Administrative Agent does not obtain the approval of the Required Lenders to such Post-Foreclosure Plan, any Lender shall be permitted to submit an alternative Post-Foreclosure Plan to Administrative Agent, and Administrative Agent shall submit any and all such additional Post-Foreclosure Plan(s) to the Lenders for evaluation and the approval by the Required Lenders. In accordance with the approved Post-Foreclosure Plan, Administrative Agent shall manage, operate, repair, administer, complete, construct, restore or otherwise deal with the Mortgaged Property acquired and administer all transactions relating thereto, including, without limitation, employing a management agent, leasing agent and other agents, contractors and employees, including agents for the sale of such Mortgaged Property, and the collecting of rents and other sums from such Mortgaged Property and paying the expenses of such Mortgaged Property. Upon demand therefor from time to time, each Lender will contribute its ratable share (based on their respective Commitments immediately prior to the termination thereof) of all reasonable costs and expenses incurred by Administrative Agent pursuant to the Post-Foreclosure Plan in connection with the construction, operation, management, maintenance, marketing leasing and sale of the Mortgaged Property. In addition, Administrative Agent shall render or cause to be rendered by the managing agent, to each of the Lenders, monthly, an income and expense statement for such Collateral Pool Assets Mortgaged Property, and that each of the Lenders shall promptly contribute its ratable share (based on their respective Commitments immediately prior to the termination thereof) of any operating loss for the Mortgaged Property, and such agreement other expenses and operating reserves as Administrative Agent shall deem reasonably necessary pursuant to and in accordance with the Post-Foreclosure Plan. To the extent there is net operating income from such Mortgaged Property, Administrative Agent shall, in accordance with the Post-Foreclosure Plan, determine the amount and timing of distributions to the Lenders. All such distributions shall be consistent with made to the following:
(i) Lenders in proportion to their respective Commitments immediately prior to the termination thereof. The Collateral Pool Assets Lenders acknowledge that if title to any Mortgaged Property is obtained by Administrative Agent or its subsidiary or designee, or an entity co-owned by the Lenders, such Mortgaged Property will not be held as a long-term permanent investment but will be marketed in an attempt to sell them in disposed of as soon as practicable and within a time period consistent with the regulations applicable to national banks for owning real estate. Current appraisals Administrative Agent shall undertake to sell such Mortgaged Property at such price and upon such terms and conditions as the Required Lenders shall reasonably determine to be most advantageous. Any purchase money mortgage or deed of trust taken in connection with the disposition of such Mortgaged Property in accordance with the immediately preceding sentence shall name Administrative Agent, as agent for the Lenders, as the beneficiary or mortgagee. In such case, Administrative Agent and the Lenders shall enter into an agreement with respect to such purchase money mortgage defining the rights of the Collateral Properties Lenders in the same, which agreement shall be obtained by in all material respects similar to the Administrative Agent from time to time during the ownership period at Lenders' expense (without diminishing or releasing any obligation rights of the Borrower to pay for such costs) and an appraised value shall be established and updated from time to time based on such appraisals.
(ii) Certain decisionmaking Lenders with respect to the day-to-day operations of the Properties will be delegated Mortgaged Property. Lenders agree not to management and leasing agents. All agreements with such management and leasing agents will be subject to the unreasonably withhold or delay their approval of the Required Lenders. The daya Post-to-day supervision of such agents shall be done by the Administrative Agent.
(iii) Except as provided in the following sentences, all decisions as to whether to sell the Collateral Pool Assets shall be subject to the approval of all the Lenders. Notwithstanding the foregoing, the Lenders agree that if the Administrative Agent receives a bona fide "all cash" offer from an entity not affiliated with the Borrower Foreclosure Plan or any Lender for the purchase of any of the Collateral Pool Assets and such offer equals or exceeds ninety percent (90%) of the most recent appraised value of such Collateral Pool Asset as established by an appraisal prepared in accordance with the standards established in this Agreement that has been completed within six months of such offer, then the Administrative Agent shall give written notice of such third party offer to purchase the Lenders and request their approval for sale at such a price. If the Required Lenders approve of such a sale (or are deemed to approve of such a sale) then the Administrative Agent, acting on behalf of the Lenders, is irrevocably authorized to accept such offerMortgaged Property.
(iv) All expenses incurred by the Administrative Agent and Lenders in connection with the ownership, operation, maintenance, marketing and sale of the Collateral Pool Assets shall be allocated among the Lenders pro rata in accordance with their respective Percentages.
(v) All expenditures and other actions taken with respect to the Collateral Pool Assets shall at all times be subject to the regulations and requirements pertaining to national banks applicable thereto. Without limiting the generality of the foregoing, all necessary approvals from regulatory authorities in connection with any expenditure of funds by the Lenders shall be a condition to such expenditure.
Appears in 1 contract
Sources: Loan Agreement (Alexanders Inc)
Foreclosure. The Lenders hereby agree to the following in the event of foreclosure under any of the Mortgages or any other attempt at realization of the security thereunder:
(a) To subscribe to If an Event of Default shall have occurred and accept its Percentage of the ownership interests in any entity organized to hold title to the be continuing, Collateral Pool Assets and that the nature of such entity Agent shall be determined by entitled to proceed to foreclose this Deed of Trust and to cause the Required Lenders, subject to each Lender's right to hold its interests in such entity in, and assign such interests to, any affiliate of such Lender or any other entity required by laws or regulations governing such Lender. The Administrative Agent is hereby authorized to act for and on behalf of the Lenders in all day-to-day matters with respect to the exercise of rights described herein such as the supervision of attorneys, accountants, appraisers or others acting for the benefit of all of the Lenders in connection with litigation, foreclosure or realization sale of all or any security given portion of the Property for cash or upon such terms and conditions as Collateral for Agent may deem expedient, under the Obligations judgment or other similar actions.
(b) If decree of a court or courts of competent jurisdiction in order to pay the Lenders acquire Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the Collateral Pool Assets either by event of any such foreclosure or deed in lieu of foreclosuresale, to negotiate in good faith to reach agreement in writing relating Grantor shall be deemed a tenant holding over and shall forthwith deliver possession to the ownership, operation, maintenance, marketing and purchaser or purchasers at such sale or be summarily dispossessed according to provisions of such Collateral Pool Assets and that such agreement shall be consistent with the following:law applicable to tenants holding over.
(i) The If an Event of Default shall have occurred and be continuing, Collateral Pool Assets Agent may elect to cause the Property or any part thereof to be sold under the power of sale herein granted. Foreclosure through Trustee will not be initiated by Collateral Agent’s filing of its notice of election and demand for sale with Trustee. Upon the filing of such notice of election and demand for sale, Trustee shall promptly comply with all notice and other requirements of the laws of Colorado then in force with respect to such sales, and shall give four weeks’ public notice of the time and place of such sale by advertisement weekly in some newspaper of general circulation then published in the County or City and County in which the Property is located. Any sale conducted by Trustee pursuant to this section shall be held at the front door of the county courthouse for such County or City and County, or on the Property, or at such other place as similar sales are then customarily held in such County or City and County, provided that the actual place of sale shall be specified in the notice of sale. Collateral Agent may bid at any such sale, and (except insofar as Trustee’s fees and other expenses of sale are required by law to be paid in cash) may pay any such bid in whole or in part by credit against the Obligations rather than in cash. The proceeds of any sale under this section shall be applied first to the fees and expenses of the officer conducting the sale, and then to the reduction or discharge of the Obligations in such order as Collateral Agent may elect; any surplus remaining shall be paid over to Grantor or to such other Person or Persons as may be lawfully entitled to such surplus. At the conclusion of any foreclosure sale, the officer conducting the sale shall execute and deliver to the purchaser at the sale a long-term investment but certificate of purchase, which shall describe the property sold to such purchaser and shall state that upon the expiration of the applicable periods for redemption, the holder of such certificate will be marketed entitled to a deed to the property described in the certificate. After the expiration of all applicable periods of redemption, unless the property sold has been redeemed by Grantor, the officer who conducted such sale shall, upon request, execute and deliver an attempt appropriate deed to sell them in a time period consistent with the regulations applicable to national banks for owning real estate. Current appraisals holder of the certificate of purchase or the last certificate of redemption, as the case may be, and such deed shall operate to divest Grantor and all Persons claiming under Grantor of all right, title and interest, whether legal or equitable, in the property described in the deed. Nothing in this section dealing with foreclosure procedures or specifying particular actions to be taken by Collateral Properties Agent or by Trustee or any similar officer shall be obtained deemed to contradict or add to the requirements and procedures now or hereafter specified by the Administrative Agent from time to time during the ownership period at Lenders' expense (without diminishing or releasing Colorado law, and any obligation of the Borrower to pay for such costs) and an appraised value inconsistency shall be established and updated from resolved in favor of Colorado law applicable at the time to time based on such appraisalsof foreclosure.
(ii) Certain decisionmaking In connection with respect any sale or sales hereunder, Collateral Agent may elect to the day-to-day operations treat any of the Properties will Property which consists of a right in action or which is property that can be delegated to management severed from the real property covered hereby or any improvements thereon without causing structural damage thereto as if the same were personal property, and leasing agents. All agreements with such management and leasing agents will be subject to the approval dispose of the Required Lenders. The day-to-day supervision same in accordance with applicable law, separate and apart from the sale of such agents shall be done by the Administrative Agentreal property.
(iii) Except as provided Where the Property consists of real property and personal property, any reinstatement of the Indebtedness or Obligations secured hereby, following default and an election by the Collateral Agent to accelerate the maturity of said Indebtedness or Obligations, which is made by Grantor or any other person or entity permitted to exercise the right of reinstatement under Colorado law shall not prohibit the Collateral Agent from conducting a sale or other disposition of any personal property or fixtures or from otherwise proceeding against or continuing to proceed against any personal property or fixtures in any manner permitted by the Colorado Commercial Code or any other applicable law; nor shall any such reinstatement invalidate, rescind or otherwise affect any sale, disposition or other proceeding held, conducted or instituted with respect to any personal property or fixtures prior to such reinstatement or pending at the time of such reinstatement. Any sums paid to Collateral Agent in effecting any reinstatement shall be applied to the secured obligation and to the Collateral Agent’s and Trustee’s reasonable costs and expenses in the following sentences, all decisions as to whether to sell the Collateral Pool Assets shall be subject to the approval of all the Lenders. Notwithstanding the foregoing, the Lenders agree that if the Administrative Agent receives a bona fide "all cash" offer from an entity not affiliated with the Borrower or any Lender for the purchase of any of the Collateral Pool Assets and such offer equals or exceeds ninety percent (90%) of the most recent appraised value of such Collateral Pool Asset as established manner required by an appraisal prepared in accordance with the standards established in this Agreement that has been completed within six months of such offer, then the Administrative Agent shall give written notice of such offer to the Lenders and request their approval for sale at such a price. If the Required Lenders approve of such a sale (or are deemed to approve of such a sale) then the Administrative Agent, acting on behalf of the Lenders, is irrevocably authorized to accept such offerColorado law.
(iv) All expenses incurred by the Administrative Should Collateral Agent and Lenders in connection with the ownership, operation, maintenance, marketing and sale elect to sell any portion of the Property which is real property or which is personal property or fixtures that Collateral Pool Assets shall be allocated among Agent has elected under Section 4-9-604(a)(2) or 4-9-604(b)(2) of the Lenders pro rata Colorado Uniform Commercial Code to sell together with real property in accordance with their respective Percentagesthe laws governing a sale of real property, Collateral Agent or Trustee shall give such notice of default and election to sell as may then be required by law. Thereafter, upon the expiration of such time and the giving of such notice of sale as may then be required by law, and without the necessity of any demand on Grantor, Trustee, at the time and place specified in the notice of sale, shall sell said real property or part thereof at public auction to the highest bidder for cash in lawful money of the United States. Trustee may, and upon request of Collateral Agent shall, from time to time, postpone any sale hereunder by public announcement thereof at the time and place noticed therefor, and Grantor agrees and acknowledges that Collateral Agent may elect in its sole and absolute discretion to direct such postponement(s) for such periods of time as Collateral Agent may find necessary or desirable.
(v) All expenditures and In any notice of foreclosure sale, advertisement of sale, or other actions taken with respect to the post-default public statement of Trustee or Collateral Pool Assets shall at all times be subject to the regulations and requirements pertaining to national banks applicable thereto. Without limiting the generality of the foregoing, all necessary approvals from regulatory authorities Agent in connection with the judicial or nonjudicial foreclosure of all or any expenditure part of funds the Property, Grantor agrees that Trustee and Collateral Agent shall have the right, but not the obligation, to disclose any report or information known to them regarding defects in the Property, that Trustee and Collateral Agent cannot control or otherwise assure the truthfulness or the accuracy of such reports or information, and that the disclosure of such reports or information to prospective bidders at any foreclosure sale of the Property may have a material adverse effect upon the amount which a party may bid at such sale. Grantor agrees that Collateral Agent and Trustee shall have no liability whatsoever as a result of disclosing any or all of such reports or information to any third party, and Grantor hereby waives, releases and forever discharges Collateral Agent and Trustee from any and all claims, damages, or causes of action, arising out of, connected with or incidental to the disclosure, use or delivery of any such report or information.
(vi) Should Collateral Agent desire that more than one sale or other disposition of the Property be conducted, Collateral Agent may, at its option, cause the same to be conducted simultaneously, or successively, on the same day, or at such different days or times and in such order as Collateral Agent may deem to be in its best interests, and no such sale shall terminate or otherwise affect the lien of this Deed of Trust on any part of the Property not sold until all Indebtedness secured hereby has been fully paid and all Obligations secured hereby have been fully performed, nor shall the power of sale granted under this Deed of Trust be exhausted until all such sales are conducted.
(c) Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Deed of Trust by announcement at the Lenders time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned.
(d) Upon the completion of any sale or sales made by Collateral Agent under or by virtue of this Section 3.04, (and, in the case of so much of the Property as constitutes real property, upon the expiration of any non-waivable post-sale redemption period), Collateral Agent, Trustee, or an officer of any court empowered to do so, shall execute and deliver to the accepted purchaser or purchasers a good and sufficient instrument, or good and sufficient instruments, conveying, assigning and transferring all estate, right, title and interest in and to the property and rights sold. Each of Trustee and Collateral Agent is hereby irrevocably appointed the true and lawful attorney of Grantor, in its name and stead, to make all necessary conveyances, assignments, transfers and deliveries of the Property and rights so sold and for that purpose Collateral Agent or Trustee may execute all necessary instruments of conveyance, assignment and transfer, and may substitute one or more persons with like power, Grantor hereby ratifying and confirming all that its said attorney or such substitute or substitutes shall lawfully do by virtue hereof. Any such sale or sales made under or by virtue of this Section 3.04 shall operate to divest all the estate, right, title, interest, claim and demand whatsoever, whether at law or in equity, of Grantor in and to the properties and rights so sold, and shall be a condition perpetual bar both at law and in equity against Grantor and against any and all persons claiming or who may claim the same, or any part thereof from, through or under Grantor.
(e) Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may (except insofar as Trustee’s fees and other expenses of sale are required by law to such expenditurebe paid in cash) make settlement for all or a portion of the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Deed of Trust.
Appears in 1 contract
Sources: Leasehold Deed of Trust (Golfsmith International Holdings Inc)
Foreclosure. The Lenders hereby agree a) Servicer shall continually monitor Mortgage Loans that have been referred to foreclosure throughout the process to ensure that effective timelines are being met.
b) Servicer shall follow the proper foreclosure procedure requirements under applicable Laws, including starting and/or reinstating judicial or non-judicial foreclosure, as applicable.
c) Servicer will select an attorney firm or trustee from its list of preferred vendors to complete foreclosure actions. Servicer will manage foreclosure processes through Black Knight Desktop/Process Management. Servicer will adhere to foreclosure timelines established by USFN, allowing adjustments for inherited actions, contested matters, and other third party delays when assessing timeline compliance.
d) Servicer will require foreclosure attorneys and trustees to adhere to the following fee guidelines established by ▇▇▇▇▇▇ ▇▇▇ or, if stricter, such guidelines as are imposed under other applicable Laws.
e) Servicer will obtain a valuation of the Mortgaged Property prior to the foreclosure sale where appropriate and determine the foreclosure bid amount in consultation with Owner.
f) Notwithstanding the above, all foreclosure bids are capped by the total debt owed by the Mortgagor.
g) In the event of a foreclosure under any and subsequent sale of the Mortgages REO Property, Servicer will request Owner’s approval to secure a deficiency judgment, if permitted by law. If approved by Owner, Servicer will perform any and all actions required to secure a deficiency judgment.
h) Foreclosure referrals should be signed off by a manager or any other attempt at realization foreclosure review committee of the security thereunder:
(a) To subscribe to and accept its Percentage of the ownership interests in any entity organized to hold title Servicer before being sent to the Collateral Pool Assets foreclosure attorney or trustee.
i) Throughout the foreclosure process and that the nature of such entity shall be determined by the Required Lenders, subject to each Lender's right to hold its interests in such entity in, and assign such interests to, any affiliate of such Lender or any other entity required by laws or regulations governing such Lender. The Administrative Agent is hereby authorized to act for and on behalf of the Lenders in all day-to-day matters with respect to vacant properties, Servicer is responsible for procuring all property preservation functions to ensure that the exercise of rights described herein such as the supervision of attorneys, accountants, appraisers or others acting for the benefit of all condition and appearance of the Lenders in connection with litigationMortgaged Property are maintained. This includes securing the Mortgaged Property, foreclosure mowing the grass, removing trash and other debris that violate applicable law or realization of all pose a health or any security given as Collateral for safety hazard, winterizing the Obligations or other similar actionsMortgaged Property, etc.
(bj) Servicer shall retain outside counsel and title firms with expertise in the given geography of the Mortgaged Property to review prior due diligence findings on title, order and review new title report for liens, judgments, assignment issues, and other defects. Said counsel shall perfect title defects prior to foreclosure sale.
k) Prior to considering the Mortgage Loan for foreclosure sale, Servicer shall confirm that no pending loss mitigation options are active.
l) If the Lenders acquire the Collateral Pool Assets either by foreclosure or deed in lieu of Mortgagor has been referred to foreclosure, qualifies for a Loan Modification and is willing to negotiate in good faith to reach agreement in writing relating to execute modification documents, the ownership, operation, maintenance, marketing and foreclosure sale of such Collateral Pool Assets and that such agreement shall be consistent with the following:
(i) The Collateral Pool Assets will not be held as a long-term investment but will be marketed in an attempt stopped unless the Mortgagor has defaulted on a related trial period plan, the foreclosure sale date is to sell them in a time period consistent with occur within 30 days, or if otherwise instructed by Owner.
m) Servicer shall manage the regulations applicable foreclosure process so as to national banks for owning real estate. Current appraisals of preserve the Collateral Properties shall be obtained insurance provided by the Administrative Agent from time to time during the ownership period at Lenders' expense (without diminishing PMI Policy or releasing any obligation of the Borrower to pay for such costs) and an appraised value shall be established and updated from time to time based on such appraisalsLPMI Policy, where applicable.
n) To the extent the Servicing Asset Schedule notes the existence of a Superior Lien; Servicer shall (ii1) Certain decisionmaking with respect to identify whether Servicer is also servicing the day-to-day operations Superior Lien for Owner and (2) monitor the status of the Properties will be delegated to management and leasing agents. All agreements with such management and leasing agents will be subject to the approval of the Required Lenders. The day-to-day supervision of such agents shall be done by the Administrative Agent.
(iii) Except as provided in the following sentences, all decisions as to whether to sell the Collateral Pool Assets shall be subject to the approval of all the Lenders. Notwithstanding the foregoing, the Lenders agree that if the Administrative Agent receives a bona fide "all cash" offer from an entity not affiliated with the Borrower or any Lender for the purchase of any of the Collateral Pool Assets and such offer equals or exceeds ninety percent (90%) of the most recent appraised value of such Collateral Pool Asset as established by an appraisal prepared each Superior Lien in accordance with Applicable Requirements. If Servicer is servicing both the standards established Mortgage Loan and Superior Lien for Owner, Servicer shall provide Owner with an electronic file identifying the related Mortgage Loan and Superior Lien within ten (10) business days of the related Servicing Commencement Date. If necessary to comply with Applicable Requirements, Servicer shall file (or cause to be filed) a request for notice of any action by a superior lien holder under a Superior Lien for the protection of Owner’s interest, where permitted by applicable Laws and whenever such Laws do not require that a junior lien holder be named as a party defendant in this Agreement that has been completed within six months foreclosure proceedings in order to foreclose such junior ▇▇▇▇ ▇▇▇▇▇▇’▇ equity of redemption. The cost of such offer, then the Administrative Agent shall give written notice of such offer to the Lenders and request their approval for sale at such a price. If the Required Lenders approve of such a sale (or are deemed to approve of such a sale) then the Administrative Agent, acting on behalf of the Lenders, is irrevocably authorized to accept such offer.
(iv) All expenses incurred by the Administrative Agent and Lenders in connection with the ownership, operation, maintenance, marketing and sale of the Collateral Pool Assets filing shall be allocated among the Lenders pro rata in accordance with their respective Percentagesdeemed a Servicing Advance.
(v) All expenditures and other actions taken with respect to the Collateral Pool Assets shall at all times be subject to the regulations and requirements pertaining to national banks applicable thereto. Without limiting the generality of the foregoing, all necessary approvals from regulatory authorities in connection with any expenditure of funds by the Lenders shall be a condition to such expenditure.
Appears in 1 contract
Sources: Flow Servicing Agreement (Altisource Residential Corp)
Foreclosure. The Lenders hereby agree to the following in In the event of foreclosure under any of the Mortgages or any other attempt at realization of the security thereunder:
(a) To subscribe to and accept its Percentage of the ownership interests in any entity organized to hold title to the Collateral Pool Assets and that the nature of such entity shall be determined by the Required Lenders, subject to each Lender's right to hold its interests in such entity in, and assign such interests to, any affiliate of such Lender or any other entity required by laws or regulations governing such Lender. The Administrative Agent is hereby authorized to act for and on behalf of the Lenders in all day-to-day matters with respect to the exercise of rights described herein such as the supervision of attorneys, accountants, appraisers or others acting for the benefit of all of the Lenders in connection with litigation, foreclosure or realization of all or any security given portion of any Mortgaged Property is acquired by Administrative Agent as Collateral for the Obligations or other similar actions.
(b) If the Lenders acquire the Collateral Pool Assets either by result of a foreclosure or acceptance of a deed or assignment in lieu of foreclosure, or is retained in satisfaction of all or any part of the Obligations, title to negotiate any such Mortgaged Property or any portion thereof shall be held in good faith to reach agreement the name of Administrative Agent or a nominee or subsidiary of Administrative Agent, as agent, for the benefit of the Lenders, or in writing relating an entity co-owned by the Lenders as determined by Administrative Agent. Administrative Agent shall prepare a recommended course of action for such Mortgaged Property (the "Post-Foreclosure Plan") and submit it to the ownershipLenders for approval by the Required Lenders. In the event that Administrative Agent does not obtain the approval of the Required Lenders to such Post-Foreclosure Plan, any Lender shall be permitted to submit an alternative Post-Foreclosure Plan to Administrative Agent, and Administrative Agent shall submit any and all such additional Post-Foreclosure Plan(s) to the Lenders for evaluation and the approval by the Required Lenders. In accordance with the approved Post-Foreclosure Plan, Administrative Agent shall manage, operate, repair, administer, complete, construct, restore or otherwise deal with the Mortgaged Property acquired and administer all transactions relating thereto, including, without limitation, employing a management agent, leasing agent and other agents, contractors and employees, including agents for the sale of such Mortgaged Property, and the collecting of rents and other sums from such Mortgaged Property and paying the expenses of such Mortgaged Property. Upon demand therefor from time to time, each Lender will contribute its ratable share (based on their respective Commitments immediately prior to the termination thereof) of all reasonable costs and expenses incurred by Administrative Agent pursuant to the Post-Foreclosure Plan in connection with the construction, operation, management, maintenance, marketing leasing and sale of the Mortgaged Property. In addition, Administrative Agent shall render or cause to be rendered by the managing agent, to each of the Lenders, monthly, an income and expense statement for such Collateral Pool Assets Mortgaged Property, and that each of the Lenders shall promptly contribute its ratable share (based on their respective Commitments immediately prior to the termination thereof) of any operating loss for the Mortgaged Property, and such agreement other expenses and operating reserves as Administrative Agent shall deem reasonably necessary pursuant to and in accordance with the Post-Foreclosure Plan. To the extent there is net operating income from such Mortgaged Property, Administrative Agent shall, in accordance with the Post-Foreclosure Plan, determine the amount and timing of distributions to the Lenders. All such distributions shall be consistent with made to the following:
(i) Lenders in proportion to their respective Commitments immediately prior to the termination thereof. The Collateral Pool Assets Lenders acknowledge that if title to any Mortgaged Property is obtained by Administrative Agent or its nominee, or an entity co-owned by the Lenders, such Mortgaged Property will not be held as a long-term permanent investment but will be marketed in an attempt to sell them in disposed of as soon as practicable and within a time period consistent with the regulations applicable to national banks for owning real estate. Current appraisals of the Collateral Properties shall be obtained by the Administrative Agent from time shall undertake to time during the ownership period sell such Mortgaged Property at Lenders' expense (without diminishing or releasing any obligation of the Borrower to pay for such costs) price and an appraised value shall be established upon such terms and updated from time to time based on such appraisals.
(ii) Certain decisionmaking with respect to the day-to-day operations of the Properties will be delegated to management and leasing agents. All agreements with such management and leasing agents will be subject to the approval of conditions as the Required LendersLenders shall reasonably determine to be most advantageous. The day-to-day supervision Any purchase money mortgage or deed of trust taken in connection with the disposition of such agents shall be done by the Administrative Agent.
(iii) Except as provided in the following sentences, all decisions as to whether to sell the Collateral Pool Assets shall be subject to the approval of all the Lenders. Notwithstanding the foregoing, the Lenders agree that if the Administrative Agent receives a bona fide "all cash" offer from an entity not affiliated with the Borrower or any Lender for the purchase of any of the Collateral Pool Assets and such offer equals or exceeds ninety percent (90%) of the most recent appraised value of such Collateral Pool Asset as established by an appraisal prepared Mortgaged Property in accordance with the standards established in this Agreement that has been completed within six months of such offer, then the Administrative Agent immediately preceding sentence shall give written notice of such offer to the Lenders and request their approval for sale at such a price. If the Required Lenders approve of such a sale (or are deemed to approve of such a sale) then the name Administrative Agent, acting on behalf of as agent for the Lenders, is irrevocably authorized to accept as the beneficiary or mortgagee. In such offer.
(iv) All expenses incurred by the case, Administrative Agent and Lenders in connection with the ownership, operation, maintenance, marketing and sale of the Collateral Pool Assets shall be allocated among the Lenders pro rata in accordance with their respective Percentages.
(v) All expenditures and other actions taken shall enter into an agreement with respect to the Collateral Pool Assets shall at all times be subject to the regulations and requirements pertaining to national banks applicable thereto. Without limiting the generality of the foregoing, all necessary approvals from regulatory authorities in connection with any expenditure of funds by the Lenders shall be a condition to such expenditure.such
Appears in 1 contract
Sources: Term Loan and Security Agreement (KBS Growth & Income REIT, Inc.)
Foreclosure. The Lenders hereby agree to the following in In the event of foreclosure under any of the Mortgages or any other attempt at realization of the security thereunder:
(a) To subscribe to and accept its Percentage of the ownership interests in any entity organized to hold title to the Collateral Pool Assets and that the nature of such entity shall be determined by the Required Lenders, subject to each Lender's right to hold its interests in such entity in, and assign such interests to, any affiliate of such Lender or any other entity required by laws or regulations governing such Lender. The Administrative Agent is hereby authorized to act for and on behalf of the Lenders in all day-to-day matters with respect to the exercise of rights described herein such as the supervision of attorneys, accountants, appraisers or others acting for the benefit of all of the Lenders in connection with litigation, foreclosure or realization of all or any security given portion of a Borrowing Base Property is acquired by Administrative Agent as Collateral for the Obligations or other similar actions.
(b) If the Lenders acquire the Collateral Pool Assets either by result of a foreclosure or acceptance of a deed or assignment in lieu of foreclosure, or is retained in satisfaction of all or any part of the Obligations, title to negotiate such Borrowing Base Property or any portion thereof shall be held in good faith to reach agreement the name of Administrative Agent or a nominee or subsidiary of Administrative Agent, as agent, for the benefit of the Lenders, or in writing relating an entity co-owned by the Lenders as determined by Administrative Agent. Administrative Agent shall prepare a recommended course of action for such Borrowing Base Property (the “Post-Foreclosure Plan”) and submit it to the ownershipLenders for approval by the Required Lenders. In the event that Administrative Agent does not obtain the approval of the Required Lenders to such Post-Foreclosure Plan, any Lender shall be permitted to submit an alternative Post-Foreclosure Plan to Administrative Agent, and Administrative Agent shall submit any and all such additional Post-Foreclosure Plan(s) to the Lenders for evaluation and the approval by the Required Lenders. In accordance with the approved Post-Foreclosure Plan, Administrative Agent shall manage, operate, repair, administer, complete, construct, restore or otherwise deal with the Borrowing Base Property acquired and administer all transactions relating thereto, including, without limitation, employing a management agent, leasing agent and other agents, contractors and employees, including agents for the sale of such Borrowing Base Property, and the collecting of rents and other sums from such Borrowing Base Property and paying the expenses of such Borrowing Base Property. Upon demand therefor from time to time, each Lender will contribute its ratable share (based on their respective Commitments immediately prior to the termination thereof) of all reasonable costs and expenses incurred by Administrative Agent pursuant to the Post-Foreclosure Plan in connection with the construction, operation, management, maintenance, marketing leasing and sale of the Borrowing Base Property. In addition, Administrative Agent shall render or cause to be rendered by the managing agent, to each of the Lenders, monthly, an income and expense statement for such Collateral Pool Assets Borrowing Base Property, and that each of the Lenders shall promptly contribute its ratable share (based on their respective Commitments immediately prior to the termination thereof) of any operating loss for the Borrowing Base Property, and such agreement other expenses and operating reserves as Administrative Agent shall deem reasonably necessary pursuant to and in accordance with the Post-Foreclosure Plan. To the extent there is net operating income from such Borrowing Base Property, Administrative Agent shall, in accordance with the Post-Foreclosure Plan, determine the amount and timing of distributions to the Lenders. All such distributions shall be consistent with made to the following:
(i) Lenders in proportion to their respective Commitments immediately prior to the termination thereof. The Collateral Pool Assets Lenders acknowledge that if title to any Borrowing Base Property is obtained by Administrative Agent or its nominee, or an entity co-owned by the Lenders, such Borrowing Base Property will not be held as a long-term permanent investment but will be marketed in an attempt to sell them in disposed of as soon as practicable and within a time period consistent with the regulations applicable to national banks for owning real estate. Current appraisals Administrative Agent shall undertake to sell such Borrowing Base Property at such price and upon such terms and conditions as the Required Lenders shall reasonably determine to be most advantageous. Any purchase money mortgage or deed of trust taken in connection with the disposition of such Borrowing Base Property in accordance with the immediately preceding sentence shall name Administrative Agent, as agent for the Lenders, as the beneficiary or mortgagee. In such case, Administrative Agent and the Lenders shall enter into an agreement with respect to such purchase money mortgage defining the rights of the Collateral Properties Lenders in the same, which agreement shall be obtained by in all material respects similar to the Administrative Agent from time to time during the ownership period at Lenders' expense (without diminishing or releasing any obligation rights of the Borrower to pay for such costs) and an appraised value shall be established and updated from time to time based on such appraisals.
(ii) Certain decisionmaking Lenders with respect to the day-to-day operations of the Properties will be delegated Borrowing Base Property. Lenders agree not to management and leasing agents. All agreements with such management and leasing agents will be subject to the unreasonably withhold or delay their approval of the Required Lenders. The daya Post-to-day supervision of such agents shall be done by the Administrative Agent.
(iii) Except as provided in the following sentences, all decisions as to whether to sell the Collateral Pool Assets shall be subject to the approval of all the Lenders. Notwithstanding the foregoing, the Lenders agree that if the Administrative Agent receives a bona fide "all cash" offer from an entity not affiliated with the Borrower Foreclosure Plan or any Lender for third party offer to purchase the Borrowing Base Property. An offer to purchase the Borrowing Base Property or any portion thereof at a gross purchase price of any of the Collateral Pool Assets and such offer equals or exceeds ninety ninety-five percent (9095%) of the most recent appraised fair market value of such Collateral Pool Asset property as established by an appraisal prepared set forth in accordance with the standards established in this Agreement that has been completed within six months of such offera current appraisal, then the Administrative Agent shall give written notice of such offer to the Lenders and request their approval for sale at such a price. If the Required Lenders approve of such a sale (or are be deemed to approve of such be a sale) then the Administrative Agent, acting on behalf of the Lenders, is irrevocably authorized to accept such reasonable offer.
(iv) All expenses incurred by the Administrative Agent and Lenders in connection with the ownership, operation, maintenance, marketing and sale of the Collateral Pool Assets shall be allocated among the Lenders pro rata in accordance with their respective Percentages.
(v) All expenditures and other actions taken with respect to the Collateral Pool Assets shall at all times be subject to the regulations and requirements pertaining to national banks applicable thereto. Without limiting the generality of the foregoing, all necessary approvals from regulatory authorities in connection with any expenditure of funds by the Lenders shall be a condition to such expenditure.
Appears in 1 contract
Foreclosure. The Lenders hereby agree to the following in In the event of foreclosure under any of the Mortgages or any other attempt at realization of the security thereunder:
(a) To subscribe to and accept its Percentage of the ownership interests in any entity organized to hold title to the Collateral Pool Assets and that the nature of such entity shall be determined Qualified Property is acquired by the Required Lenders, subject to each Lender's right to hold its interests in such entity in, and assign such interests to, any affiliate of such Lender or any other entity required by laws or regulations governing such Lender. The Administrative Agent is hereby authorized to act for and on behalf of the Lenders in all day-to-day matters with respect to the exercise of rights described herein such as the supervision result of attorneys, accountants, appraisers or others acting for the benefit of all of the Lenders in connection with litigation, a foreclosure or realization acceptance of all a deed or any security given as Collateral for the Obligations or other similar actions.
(b) If the Lenders acquire the Collateral Pool Assets either by foreclosure or deed assignment in lieu of foreclosure, or is retained in satisfaction of all or any part of the Obligations (each a “Foreclosure Property”), title to negotiate any such Foreclosure Property or any portion thereof shall be held in good faith to reach agreement the name of Administrative Agent or a nominee or subsidiary of Administrative Agent, as agent, for the benefit of the Lenders, or in writing relating an entity co-owned by the Lenders as determined by Administrative Agent. Administrative Agent shall prepare a recommended course of action for such Foreclosure Property (the “Post-Foreclosure Plan”) and submit it to the ownershipLenders for approval by the Required Lenders. In the event that Administrative Agent does not obtain the approval of the Required Lenders to such Post-Foreclosure Plan, any Lender shall be permitted to submit an alternative Post-Foreclosure Plan to Administrative Agent, and Administrative Agent shall submit any and all such additional Post-Foreclosure Plan(s) to the Lenders for evaluation and the approval by the Required Lenders. In accordance with the approved Post-Foreclosure Plan, Administrative Agent shall manage, operate, repair, administer, complete, construct, restore or otherwise deal with the Foreclosure Property acquired and administer all transactions relating thereto, including, without limitation, employing a management agent, leasing agent and other agents, contractors and employees, including agents for the sale of such Foreclosure Property, and the collecting of rents and other sums from such Foreclosure Property and paying the expenses of such Foreclosure Property. Upon demand therefor from time to time, each Lender will contribute its ratable share (based on its respective Commitment Amount Percentage) of all reasonable costs and expenses incurred by Administrative Agent pursuant to the Post-Foreclosure Plan in connection with the construction, operation, management, maintenance, marketing leasing and sale of the Foreclosure Property. In addition, Administrative Agent shall render or cause to be rendered by the managing agent, to each of the Lenders, monthly, an income and expense statement for such Collateral Pool Assets Foreclosure Property, and that each of the Lenders shall promptly contribute its ratable share (based on its respective Commitment Amount Percentage) of any operating loss for the Foreclosure Property, and such agreement other expenses and operating reserves as Administrative Agent shall deem reasonably necessary pursuant to and in accordance with the Post-Foreclosure Plan. To the extent there is net operating income from such Foreclosure Property, Administrative Agent shall, in accordance with the Post-Foreclosure Plan, determine the amount and timing of distributions to the Lenders. All such distributions shall be consistent with made to the following:
(i) Lenders in proportion to their respective Commitment Amount Percentage. The Collateral Pool Assets Lenders acknowledge that if title to any Foreclosure Property is obtained by Administrative Agent or its nominee, or an entity co-owned by the Lenders, such Foreclosure Property will not be held as a long-term permanent investment but will be marketed in an attempt to sell them in disposed of as soon as practicable and within a time period consistent with the regulations applicable to national banks for owning real estate. Current appraisals Administrative Agent shall undertake to sell such Foreclosure Property at such price and upon such terms and conditions as the Required Lenders shall reasonably determine to be most advantageous. Any purchase money mortgage or deed of trust taken in connection with the disposition of such Foreclosure Property in accordance with the immediately preceding sentence shall name Administrative Agent, as agent for the Lenders, as the beneficiary or mortgagee. In such case, Administrative Agent and the Lenders shall enter into an agreement with respect to such purchase money mortgage defining the rights of the Collateral Properties Lenders in the same, which agreement shall be obtained by in all material respects similar to the Administrative Agent from time to time during the ownership period at Lenders' expense (without diminishing or releasing any obligation rights of the Borrower to pay for such costs) and an appraised value shall be established and updated from time to time based on such appraisals.
(ii) Certain decisionmaking Lenders with respect to the dayForeclosure Property. Lenders agree not to unreasonably withhold or delay their approval of a Post-to-day operations Foreclosure Plan or any third party offer to purchase the Foreclosure Property. An offer to purchase the Foreclosure Property at a gross purchase price of 95% of the Properties will be delegated to management and leasing agents. All agreements with such management and leasing agents will be subject to the approval fair market value of the Required Lenders. The day-to-day supervision of such agents property as set forth in a current Appraisal, shall be done by the Administrative Agent.
(iii) Except as provided in the following sentences, all decisions as to whether to sell the Collateral Pool Assets shall be subject to the approval of all the Lenders. Notwithstanding the foregoing, the Lenders agree that if the Administrative Agent receives a bona fide "all cash" offer from an entity not affiliated with the Borrower or any Lender for the purchase of any of the Collateral Pool Assets and such offer equals or exceeds ninety percent (90%) of the most recent appraised value of such Collateral Pool Asset as established by an appraisal prepared in accordance with the standards established in this Agreement that has been completed within six months of such offer, then the Administrative Agent shall give written notice of such offer to the Lenders and request their approval for sale at such a price. If the Required Lenders approve of such a sale (or are deemed to approve of such be a sale) then the Administrative Agent, acting on behalf of the Lenders, is irrevocably authorized to accept such reasonable offer.
(iv) All expenses incurred by the Administrative Agent and Lenders in connection with the ownership, operation, maintenance, marketing and sale of the Collateral Pool Assets shall be allocated among the Lenders pro rata in accordance with their respective Percentages.
(v) All expenditures and other actions taken with respect to the Collateral Pool Assets shall at all times be subject to the regulations and requirements pertaining to national banks applicable thereto. Without limiting the generality of the foregoing, all necessary approvals from regulatory authorities in connection with any expenditure of funds by the Lenders shall be a condition to such expenditure.
Appears in 1 contract
Sources: Borrowing Base Revolving Line of Credit Agreement (Industrial Income Trust Inc.)
Foreclosure. The Lenders hereby agree to the following in the event of foreclosure under any of the Mortgages or any other attempt at realization of the security thereunder:
(a) To subscribe to and accept its Percentage of the ownership interests in any entity organized to hold title to the Collateral Pool Assets and that the nature of such entity shall be determined by the Required Lenders, subject to each Lender's right to hold its interests in such entity in, and assign such interests to, any affiliate of such Lender or any other entity required by laws or regulations governing such Lender. The Administrative Agent is hereby authorized to act for and on behalf of the Lenders in all day-to-day matters with respect to the exercise of rights described herein such as the supervision of attorneys, accountants, appraisers or others acting for the benefit of all of the Lenders in connection with litigation, foreclosure or realization of all or any security given as Collateral for the Obligations or other similar actions.
(b) If the Lenders acquire the Collateral Pool Assets either by foreclosure or deed in lieu of foreclosure, to negotiate in good faith to reach agreement in writing relating to the ownership, operation, maintenance, marketing and sale of such Collateral Pool Assets and that such agreement shall be consistent with the following:
(i) The Collateral Pool Assets will not be held as a long-term investment but will be marketed in an attempt to sell them in a time period consistent with the regulations applicable to national banks for owning real estate. Current appraisals of the Collateral Properties shall be obtained by the Administrative Agent from time to time during the ownership period at Lenders' expense (without diminishing or releasing any obligation of the Borrower to pay for such costs) and an appraised value shall be established and updated from time to time based on such appraisals.
(ii) Certain decisionmaking decision making with respect to the day-to-day operations of the Properties will be delegated to management and leasing agents. All agreements with such management and leasing agents will be subject to the approval of the Required Lenders. The day-to-day supervision of such agents shall be done by the Administrative Agent.
(iii) Except as provided in the following sentences, all decisions as to whether to sell the Collateral Pool Assets shall be subject to the approval of all the Lenders. Notwithstanding the foregoing, the Lenders agree that if the Administrative Agent receives a bona fide "all cash" offer from an entity not affiliated with the Borrower or any Lender for the purchase of any of the Collateral Pool Assets and such offer equals or exceeds ninety percent (90%) of the most recent appraised value Appraised Value of such Collateral Pool Asset as established by an appraisal Appraisal prepared in accordance with the standards established in this Agreement that has been completed within six months of such offer, then the Administrative Agent shall give written notice of such offer to the Lenders and request their approval for sale at such a price. If the Required Lenders approve of such a sale (or are deemed to approve of such a sale) then the Administrative Agent, acting on behalf of the Lenders, is irrevocably authorized to accept such offer.
(iv) All expenses incurred by the Administrative Agent and Lenders in connection with the ownership, operation, maintenance, marketing and sale of the Collateral Pool Assets shall be allocated among the Lenders pro rata in accordance with their respective Percentages.
(v) All expenditures and other actions taken with respect to the Collateral Pool Assets shall at all times be subject to the regulations and requirements pertaining to national banks applicable thereto. Without limiting the generality of the foregoing, all necessary approvals from regulatory authorities in connection with any expenditure of funds by the Lenders shall be a condition to such expenditure.
Appears in 1 contract
Foreclosure. The Lenders hereby agree to the following in In the event of foreclosure under any of the Mortgages or any other attempt at realization of the security thereunder:
(a) To subscribe to and accept its Percentage of the ownership interests in any entity organized to hold title to the Collateral Pool Assets and that the nature of such entity shall be determined by the Required Lenders, subject to each Lender's right to hold its interests in such entity in, and assign such interests to, any affiliate of such Lender or any other entity required by laws or regulations governing such Lender. The Administrative Agent is hereby authorized to act for and on behalf of the Lenders in all day-to-day matters with respect to the exercise of rights described herein such as the supervision of attorneys, accountants, appraisers or others acting for the benefit of all of the Lenders in connection with litigation, foreclosure or realization of all or any security given portion of the Mortgaged Property is acquired by Administrative Agent as Collateral for the Obligations or other similar actions.
(b) If the Lenders acquire the Collateral Pool Assets either by result of a foreclosure or acceptance of a deed or assignment in lieu of foreclosure, or is retained in satisfaction of all or any part of the Obligations, title to negotiate any such Mortgaged Property or any portion thereof shall be held in good faith to reach agreement the name of Administrative Agent or a nominee or subsidiary of Administrative Agent, as agent, for the benefit of the Lenders, or in writing relating an entity co-owned by the Lenders as determined by Administrative Agent. Administrative Agent shall prepare a recommended course of action for such Mortgaged Property (the “Post-Foreclosure Plan”) and submit it to the ownershipLenders for approval by the Required Lenders. In the event that Administrative Agent does not obtain the approval of the Required Lenders to such Post-Foreclosure Plan, any Lender shall be permitted to submit an alternative Post-Foreclosure Plan to Administrative Agent, and Administrative Agent shall submit any and all such additional Post-Foreclosure Plan(s) to the Lenders for evaluation and the approval by the Required Lenders. In accordance with the approved Post-Foreclosure Plan, Administrative Agent shall manage, operate, repair, administer, complete, construct, restore or otherwise deal with the Mortgaged Property acquired and administer all transactions relating thereto, including, without limitation, employing a management agent, leasing agent and other agents, contractors and employees, including agents for the sale of such Mortgaged Property, and the collecting of rents and other sums from such Mortgaged Property and paying the expenses of such Mortgaged Property. Upon demand therefor from time to time, each Lender will contribute its ratable share (based on their respective Commitments immediately prior to the termination thereof) of all reasonable costs and expenses incurred by Administrative Agent pursuant to the Post-Foreclosure Plan in connection with the construction, operation, management, maintenance, marketing leasing and sale of the Mortgaged Property. In addition, Administrative Agent shall render or cause to be rendered by the managing agent, to each of the Lenders, monthly, an income and expense statement for such Collateral Pool Assets Mortgaged Property, and that each of the Lenders shall promptly contribute its ratable share (based on their respective Commitments immediately prior to the termination thereof) of any operating loss for the Mortgaged Property, and such agreement other expenses and operating reserves as Administrative Agent shall deem reasonably necessary pursuant to and in accordance with the Post-Foreclosure Plan. To the extent there is net operating income from such Mortgaged Property, Administrative Agent shall, in accordance with the Post-Foreclosure Plan, determine the amount and timing of distributions to the Lenders. All such distributions shall be consistent with made to the following:
(i) Lenders in proportion to their respective Commitments immediately prior to the termination thereof. The Collateral Pool Assets Lenders acknowledge that if title to any Mortgaged Property is obtained by Administrative Agent or its nominee, or an entity co-owned by the Lenders, such Mortgaged Property will not be held as a long-term permanent investment but will be marketed in an attempt to sell them in disposed of as soon as practicable and within a time period consistent with the regulations applicable to national banks for owning real estate. Current appraisals Administrative Agent shall undertake to sell such Mortgaged Property at such price and upon such terms and conditions as the Required Lenders shall reasonably determine to be most advantageous. Any purchase money mortgage or deed of trust taken in connection with the disposition of such Mortgaged Property in accordance with the immediately preceding sentence shall name Administrative Agent, as agent for the Lenders, as the beneficiary or mortgagee. In such case, Administrative Agent and the Lenders shall enter into an agreement with respect to such purchase money mortgage defining the rights of the Collateral Properties Lenders in the same, which agreement shall be obtained by in all material respects similar to the Administrative Agent from time to time during the ownership period at Lenders' expense (without diminishing or releasing any obligation rights of the Borrower to pay for such costs) and an appraised value shall be established and updated from time to time based on such appraisals.
(ii) Certain decisionmaking Lenders with respect to the dayMortgaged Property. Lenders agree not to unreasonably withhold or delay their approval of a Post-to-day operations Foreclosure Plan or any third party offer to purchase the Mortgaged Property. An offer to purchase the Mortgaged Property at a gross purchase price of 95% of the Properties will be delegated to management and leasing agents. All agreements with such management and leasing agents will be subject to the approval fair market value of the Required Lenders. The day-to-day supervision of such agents property as set forth in a current appraisal, shall be done by the Administrative Agent.
(iii) Except as provided in the following sentences, all decisions as to whether to sell the Collateral Pool Assets shall be subject to the approval of all the Lenders. Notwithstanding the foregoing, the Lenders agree that if the Administrative Agent receives a bona fide "all cash" offer from an entity not affiliated with the Borrower or any Lender for the purchase of any of the Collateral Pool Assets and such offer equals or exceeds ninety percent (90%) of the most recent appraised value of such Collateral Pool Asset as established by an appraisal prepared in accordance with the standards established in this Agreement that has been completed within six months of such offer, then the Administrative Agent shall give written notice of such offer to the Lenders and request their approval for sale at such a price. If the Required Lenders approve of such a sale (or are deemed to approve of such be a sale) then the Administrative Agent, acting on behalf of the Lenders, is irrevocably authorized to accept such reasonable offer.
(iv) All expenses incurred by the Administrative Agent and Lenders in connection with the ownership, operation, maintenance, marketing and sale of the Collateral Pool Assets shall be allocated among the Lenders pro rata in accordance with their respective Percentages.
(v) All expenditures and other actions taken with respect to the Collateral Pool Assets shall at all times be subject to the regulations and requirements pertaining to national banks applicable thereto. Without limiting the generality of the foregoing, all necessary approvals from regulatory authorities in connection with any expenditure of funds by the Lenders shall be a condition to such expenditure.
Appears in 1 contract
Sources: Revolving Loan and Security Agreement (Cottonwood Communities, Inc.)