Common use of Senior Mortgage Clause in Contracts

Senior Mortgage. Notwithstanding anything contained herein to the contrary, so long as (1) that certain Amended and Restated Mortgage, Security Agreement and Fixture Financing Statement dated as of the date hereof executed by Mortgagor for the benefit of XXXXX FARGO BANK, N.A., as trustee for the registered holders of COBALT CMBS COMMERCIAL MORTGAGE TRUST 2006-C1, COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-C1 (“Senior Lender”) granting Senior Lender a first priority lien on the Premises (as it may be amended, modified, reinstated or otherwise changed from time to time, the “Senior Mortgage”), and (2) that certain Amended and Restated Subordination and Standstill Agreement dated as of the date hereof executed by Mortgagee for the benefit of Senior Lender are in full force and effect, Mortgagee and Mortgagor acknowledge and agree that: (a) during any period that payments from Mortgagor are being collected pursuant to the Senior Mortgage for the purpose of escrowing for (i) taxes, assessments or other charges imposed on the Premises or any portion thereof, (ii) insurance premiums due on the insurance policies required under the Senior Mortgage or this Mortgage, or (iii) any other purpose, Mortgagee shall not exercise any of its rights under this Mortgage or the Loan Documents to require any such escrow; (b) all rights of Mortgagee under this Mortgage and the Loan Documents to the Premises and the proceeds thereof (including, without limitation, assignments of leases and rents, and any rights with respect to insurance proceeds and condemnation awards) shall be expressly subject and subordinate to the rights of Senior Lender and its successors and assigns under the Senior Mortgage; (c) Mortgagor shall perform all of Mortgagor’s obligations under the Senior Mortgage, including Mortgagor’s covenants to make payments when due. Performance by Mortgagor of its obligations under the Senior Mortgage shall constitute performance hereunder of the corresponding obligations contained herein (not including any obligations to pay the indebtedness secured by this Mortgage as and when due); and (d) Upon the occurrence of a default under the Senior Mortgage, in addition to any other rights or remedies available to Mortgagee, Mortgagee may, but need not, make any payment or perform any act required to cure or attempt to cure any said default under any of the Senior Mortgage in any manner and form deemed expedient by Mortgagee. Mortgagee shall not be responsible for determining the validity or accuracy of any claim of default made by the Mortgagee under the Senior Mortgage and the payment of any sum by Mortgagee in curing or attempting to cure any alleged default or omission shall be presumed conclusively to have been reasonable, justified and authorized. Mortgagor hereby grants to Mortgagee an irrevocable power of attorney, which power of attorney is coupled with an interest, for the term of this Mortgage to cure any default or forfeiture which may occur under the Senior Mortgage. Mortgagee further agrees to execute a formal and recordable power of attorney granting such right at any time during the existence of this Mortgage if requested by Mortgagor. All monies paid by Mortgagee in curing any default under the Senior Mortgage, including reasonable attorneys’ fees and costs in connection therewith, shall bear interest from the date or dates of such payment at the Default Rate (as set forth in the Note), shall be paid by Mortgagor to Mortgagee on demand, and shall be deemed a part of the Indebtedness and recoverable as such in all respects. Any inaction on the part of the Mortgagee shall not be construed as a waiver of any right accruing to Mortgagee on account of any Default hereunder. (e) To the fullest extent possible, the terms and provisions of the Senior Mortgage shall be read together with the terms and provisions of this Mortgage such that the terms and provisions of this Mortgage shall supplement, rather than conflict with, the terms and provisions of the Senior Mortgage; provided, however, that, notwithstanding the foregoing, in the event any of the terms or provisions of this Mortgage conflict with any of the terms or provisions of the Senior Mortgage, such that it is impractical for such terms or provisions to coexist, the terms or provisions of the Senior Mortgage shall govern and control for all purposes and performance by Mortgagor of the terms or provisions contained in the Senior Mortgage shall be deemed to be performance hereunder of any conflicting terms and provisions. The inclusion in this Mortgage of terms and provisions, supplemental rights or remedies in favor of Lender which are not addressed in the Senior Mortgage shall not be deemed to be a conflict with the Senior Mortgage and all such additional terms, provisions, supplemental rights or remedies contained herein shall be given full force and effect.

Senior Mortgage. Notwithstanding anything contained herein to the contrary, so long as (1) that certain Amended and Restated Mortgage, Security Agreement and Fixture Financing Statement dated as of the date hereof executed by Mortgagor for the benefit of XXXXX FARGO BANK, N.A., as trustee for the registered holders of COBALT CMBS COMMERCIAL MORTGAGE TRUST 2006-C1, COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-C1 (“Senior Lender”) CWCapital LLC granting Senior Lender CWCapital LLC a first priority lien on the Premises (as it may be amended, modified, reinstated or otherwise changed from time to time, the “"Senior Mortgage”"), and (2) that certain Amended and Restated Subordination and Standstill Agreement dated as of the date hereof executed by Mortgagee for the benefit of Senior Lender CWCapital LLC are in full force and effect, Mortgagee and Mortgagor acknowledge and agree that: (a) during any period that payments from Mortgagor are being collected pursuant to the Senior Mortgage for the purpose of escrowing for (i) taxes, assessments or other charges imposed on the Premises or any portion thereof, (ii) insurance premiums due on the insurance policies required under the Senior Mortgage or this Mortgage, or (iii) any other purpose, Mortgagee shall not exercise any of its rights under this Mortgage or the Loan Documents to require any such escrow; (b) all rights of Mortgagee under this Mortgage and the Loan Documents to the Premises and the proceeds thereof (including, without limitation, assignments of leases and rents, and any rights with respect to insurance proceeds and condemnation awards) shall be expressly subject and subordinate to the rights of Senior Lender CWCapital LLC and its successors and assigns under the Senior Mortgage; (c) Mortgagor shall perform all of Mortgagor’s obligations under the Senior Mortgage, including Mortgagor’s covenants to make payments when due. Performance by Mortgagor of its obligations under the Senior Mortgage shall constitute performance hereunder of the corresponding obligations contained herein (not including any obligations to pay the indebtedness secured by this Mortgage as and when due); and (d) Upon the occurrence of a default under the Senior Mortgage, in addition to any other rights or remedies available to Mortgagee, Mortgagee may, but need not, make any payment or perform any act required to cure or attempt to cure any said default under any of the Senior Mortgage in any manner and form deemed expedient by Mortgagee. Mortgagee shall not be responsible for determining the validity or accuracy of any claim of default made by the Mortgagee under the Senior Mortgage and the payment of any sum by Mortgagee in curing or attempting to cure any alleged default or omission shall be presumed conclusively to have been reasonable, justified and authorized. Mortgagor hereby grants to Mortgagee an irrevocable power of attorney, which power of attorney is coupled with an interest, for the term of this Mortgage to cure any default or forfeiture which may occur under the Senior Mortgage. Mortgagee further agrees to execute a formal and recordable power of attorney granting such right at any time during the existence of this Mortgage if requested by Mortgagor. All monies paid by Mortgagee in curing any default under the Senior Mortgage, including reasonable attorneys’ fees and costs in connection therewith, shall bear interest from the date or dates of such payment at the Default Rate (as set forth in the Note), shall be paid by Mortgagor to Mortgagee on demand, and shall be deemed a part of the Indebtedness and recoverable as such in all respects. Any inaction on the part of the Mortgagee shall not be construed as a waiver of any right accruing to Mortgagee on account of any Default hereunder. (e) To the fullest extent possible, the terms and provisions of the Senior Mortgage shall be read together with the terms and provisions of this Mortgage such that the terms and provisions of this Mortgage shall supplement, rather than conflict with, the terms and provisions of the Senior Mortgage; provided, however, that, notwithstanding the foregoing, in the event any of the terms or provisions of this Mortgage conflict with any of the terms or provisions of the Senior Mortgage, such that it is impractical for such terms or provisions to coexist, the terms or provisions of the Senior Mortgage shall govern and control for all purposes and performance by Mortgagor of the terms or provisions contained in the Senior Mortgage shall be deemed to be performance hereunder of any conflicting terms and provisions. The inclusion in this Mortgage of terms and provisions, supplemental rights or remedies in favor of Lender which are not addressed in the Senior Mortgage shall not be deemed to be a conflict with the Senior Mortgage and all such additional terms, provisions, supplemental rights or remedies contained herein shall be given full force and effect.

Senior Mortgage. Notwithstanding anything contained herein The lien of this Mortgage shall be junior and subordinate to the contrarySenior Loan B Split, so long as (1) that certain Amended and Restated Mortgage, Security Agreement and Fixture Financing Statement dated as subject to the terms of the date hereof executed by Mortgagor for the benefit of XXXXX FARGO BANK, N.A., as trustee for the registered holders of COBALT CMBS COMMERCIAL MORTGAGE TRUST 2006-C1, COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-C1 (“Senior Lender”) granting Senior Lender a first priority lien on the Premises (as it may be amended, modified, reinstated or otherwise changed from time to timeIntercreditor Agreement. Further, the “Senior Mortgage”), and (2) that certain Amended and Restated Subordination and Standstill Agreement dated as of the date hereof executed by Mortgagee for the benefit of Senior Lender are in full force and effect, Mortgagee and Mortgagor acknowledge does hereby state to and agree thatwith the Mortgagee as follows: (a) during any period that payments from Mortgagor are being collected pursuant to As of the date hereof, the principal amount outstanding on the Senior Loan B Split, Amended and Restated Mortgage for the purpose of escrowing for does not exceed $12,800,000.00 and Senior Loan B Split, Amended and Restated Mortgage does not now secure nor will it secure any future advances (i) other than taxes, assessments or insurance, collection expenses and other charges imposed on sums provided by Senior Loan B Lender in order to protect the Premises or any portion thereof, (ii) insurance premiums due on the insurance policies required under collateral securing the Senior Mortgage or this MortgageLoan B and as set forth in the Intercreditor Agreement) and is scheduled to be paid off in full by September 1, or (iii) any other purpose, Mortgagee shall not exercise any of its rights under this Mortgage or the Loan Documents to require any such escrow;2004. (b) all rights The Mortgagor will not permit any modification of Mortgagee under this Mortgage and the Loan Documents to the Premises and the proceeds thereof (including, without limitation, assignments of leases and rents, and any rights with respect to insurance proceeds and condemnation awards) shall be expressly subject and subordinate to the rights of Senior Lender and its successors and assigns under the Senior Mortgage;Loan B Documents nor will the Mortgagor permit any extension of the September 1, 2004 maturity date, except as expressly provided in the Intercreditor Agreement. (c) Mortgagor shall perform all A default under any of Mortgagor’s obligations under the Senior Loan Documents is and will be a default under this Mortgage, including Mortgagor’s covenants to make payments when due. Performance by Mortgagor of its obligations under To the Senior Mortgage shall constitute performance hereunder extent any of the corresponding obligations contained herein (foregoing are not including any obligations to pay true or not performed or in the indebtedness secured by this Mortgage as and when due); and (d) Upon the occurrence event of a default under the Senior MortgageLoan Documents, in addition to any the other rights or remedies available afforded to MortgageeMortgagee hereunder, the Mortgagee may, but need not, make any payment or perform any act required specifically reserves the right to cure or attempt to cure any said such default under any of and/or pay off the Senior Mortgage in any manner and form deemed expedient by Mortgagee. Mortgagee shall not be responsible for determining the validity or accuracy of any claim of default made by the Mortgagee under Loan and/or satisfy either the Senior Mortgage and the payment of any sum by Mortgagee in curing or attempting all other Senior Loan Documents and/or to cure make any alleged default or omission shall be presumed conclusively to have been reasonable, justified and authorized. Mortgagor hereby grants to Mortgagee an irrevocable power of attorney, which power of attorney is coupled with an interest, for the term of this Mortgage to cure any default or forfeiture which may occur installment payment(s) due under the Senior Loan Documents and/or take any other action or pay any other sum due under said Senior Loan Documents as Mortgagee, in its sole and absolute discretion, deems necessary, with said payment deemed a future advance being made under Section 7.15 of and secured by this Mortgage. Any such advance by the Mortgagee further agrees to execute a formal and recordable power of attorney granting such right at any time during will be immediately repaid by the existence of this Mortgage if requested by Mortgagor. All monies paid by Mortgagee in curing any default under the Senior Mortgage, including reasonable attorneys’ fees and costs in connection therewith, shall bear Mortgagor hereunder together with interest from the date or dates of such payment at the Default Rate (default rate as set forth in the Note), shall be paid by Mortgagor to Mortgagee on demand, and shall be deemed a part of the Indebtedness and recoverable as such in all respects. Any inaction on the part of the Mortgagee shall not be construed as a waiver of any right accruing to Mortgagee on account of any Default hereunderLoan Documents. (e) To the fullest extent possible, the terms and provisions of the Senior Mortgage shall be read together with the terms and provisions of this Mortgage such that the terms and provisions of this Mortgage shall supplement, rather than conflict with, the terms and provisions of the Senior Mortgage; provided, however, that, notwithstanding the foregoing, in the event any of the terms or provisions of this Mortgage conflict with any of the terms or provisions of the Senior Mortgage, such that it is impractical for such terms or provisions to coexist, the terms or provisions of the Senior Mortgage shall govern and control for all purposes and performance by Mortgagor of the terms or provisions contained in the Senior Mortgage shall be deemed to be performance hereunder of any conflicting terms and provisions. The inclusion in this Mortgage of terms and provisions, supplemental rights or remedies in favor of Lender which are not addressed in the Senior Mortgage shall not be deemed to be a conflict with the Senior Mortgage and all such additional terms, provisions, supplemental rights or remedies contained herein shall be given full force and effect.