Common use of Taking of the Mortgaged Property Clause in Contracts

Taking of the Mortgaged Property. (a) In case of a Taking or the commencement of any proceeds or negotiations that might result in a Taking, the Borrower immediately will give notice thereof to Lender generally describing the nature and extent of such Taking or the nature of such proceedings or negotiations and the nature and extent of the Taking which might result therefrom. Lender shall be entitled hereunder to all awards or compensation payable on account of a Taking. The Borrower hereby irrevocably assigns, transfers and sets over to Lender all rights of the Borrower to any such awards or compensation and irrevocably authorizes and empowers Lender in the name of the Borrower or otherwise, to collect and receive any such award or compensation and to file and prosecute any and all claims for any such awards or compensation. Notwithstanding the foregoing, so long as no Default or Termination Payments Event of Default shall have occurred and shall then be continuing and provided the Borrower promptly files and diligently prosecutes such claim or claims, the Borrower shall have the right to prosecute and file any such claim or claims and the Borrower shall cause any such award or compensation to be collected and promptly paid over to Lender; provided, that, the Borrower shall not agree to or accept any xxxx or compensation without Lender's prior written consent. Lender may participate in such proceeds or negotiations, and the Borrower will deliver or cause to be delivered to Lender all

Appears in 2 contracts

Samples: Loan Agreement (El Conquistador Partnership Lp), Loan Agreement (WMS Hotel Corp)

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Taking of the Mortgaged Property. (a) In Promptly, and in any case within one (1) Business Day after the occurrence thereof, Borrower shall notify Agent of a any Taking of any portion of any Mortgaged Property or the commencement of any proceeds proceedings or negotiations that which might result in such a Taking, the Borrower immediately will give . Such notice thereof to Lender shall generally describing describe the nature and extent of such Taking or the nature of such proceedings or negotiations and the nature and extent of the Taking which might result therefrom. Lender Agent shall be entitled hereunder to all awards or compensation payable on account of a Taking. The Borrower hereby irrevocably assigns, transfers and sets over to Lender Agent all rights of the Borrower to any such awards or compensation and irrevocably authorizes and empowers Lender Agent, in the name of the Borrower or otherwise, to collect and receive receipt for any such award or compensation and delegate to Agent the right to file and prosecute any and all claims for any such awards or compensationcompensation and to participate in any and all hearings, trials and appeals in connection with a Taking on behalf of Borrower. Notwithstanding the foregoing, so long as no Default or Termination Payments Event of Default shall have occurred and shall then be continuing and provided the Borrower promptly files and diligently prosecutes such claim or claims, the Borrower shall have the right to prosecute and file any such claim or claims and the Borrower shall cause any such award or compensation to be collected and promptly paid over to Lender; provided, that, the Borrower shall not agree to or accept any xxxx or compensation without Lender's prior written consent. Lender Agent may participate in such proceeds proceedings or negotiations, negotiations and the Borrower will deliver or cause to be delivered to Lender allAgent all instruments requested by Agent to permit such participation; provided, however, that Agent shall be under no obligation to question the amount of the award or compensation. Although it is hereby expressly agreed that the same shall not be necessary, and in any event, Borrower shall, upon demand of Agent, make, execute and deliver any and all assignments and other instruments sufficient for the purpose of assigning any such award or compensation to Agent, free and clear of any encumbrances of any kind or nature whatsoever. Agent may be represented by counsel satisfactory to it at the expense of Borrower. Borrower will pay promptly after demand all costs and expenses (including attorneys’ fees and disbursements and any appraiser or other consultant) incurred by Agent in connection with any Taking and seeking and obtaining any award or payment on account thereof. (b) Borrower shall, at its sole cost and expense, promptly commence and diligently and continuously perform to completion the Restoration in a good and workmanlike manner and in compliance with all Legal Requirements and the requirements of the Permitted Encumbrances, whether or not Borrower shall have satisfied the Release Conditions in order to cause the Net Restoration Award to be made available for such Restoration and whether or not such awards or compensation, if any, on account of the Taking shall be sufficient for such purpose. (c) All Net Restoration Awards shall be held by Agent at its election. All Net Restoration Awards shall be applied as follows: ________________________________________________________________________________________________________________________ (i) If the Release Conditions are satisfied, and the Taking is not a Material Taking, all Net Restoration Awards shall be applied to pay the cost of Restoration, such application to be effected in the same manner as provided in Section 8.12(d) hereof with respect to Net Proceeds and the balance, if any, of such Net Restoration Awards shall, at the option of Agent, be applied as a prepayment of the principal amount of the Loan or be paid over or assigned to Borrower following completion of the Restoration. (ii) If the Taking is a Material Taking, or one or more of the Release Conditions are not satisfied, all Net Restoration Awards shall be applied in accordance with Section 8.14 hereof. (iii) In the case of a Taking for temporary use, any Net Restoration Awards shall be deposited by Agent into the Cash Flow Collection Account; and (iv) Notwithstanding anything to the contrary in this Section 8.13, in the event that Borrower elects to have a Property released and Agent is holding Net Proceeds in connection with the Taking of such Property, Agent shall release such Net Proceeds to Borrower upon payment of the Release Payment or Borrower may elect to reduce the Release Payment by the amount of such Net Proceeds, which Net Proceeds shall then constitute a portion of the Release Payment and be applied pursuant to Section 2.4(b) hereof.

Appears in 1 contract

Samples: Loan Agreement (KBS Real Estate Investment Trust, Inc.)

Taking of the Mortgaged Property. (a) In case Within five (5) Business Days after the occurrence thereof, Loan Parties shall notify Agent of a any Taking of any portion of the Mortgaged Property or the commencement of any proceeds proceedings or negotiations that might which could be reasonably expected to result in such a Taking, the Borrower immediately will give . Such notice thereof to Lender shall generally describing describe the nature and extent of such Taking or the nature of such proceedings or negotiations and the nature and extent of the Taking which might result therefrom. Lender Agent shall be entitled hereunder to hold and apply in accordance with this Section 6.13 all awards or compensation payable to or on account of Loan Parties by reason of a TakingTaking if such awards or compensation exceed the Condemnation Threshold. The Borrower Each Loan Party hereby irrevocably assigns, transfers and sets over to Lender Agent all rights of the Borrower each Loan Party to any such awards or compensation and irrevocably authorizes and empowers Lender Agent, in the name of the Borrower Loan Parties or otherwise, to collect and receive receipt for any such award or compensation and grants to Agent the right to file and prosecute any and all claims for any such awards or compensation. Notwithstanding compensation and to participate in any and all hearings, trials and appeals in connection with a Taking on behalf of Loan Parties to the foregoingextent the condemnation award or compensation exceeds the Condemnation Threshold; provided that, so long as no Default or Termination Payments Event of Default shall have occurred and be continuing, Agent shall then be continuing and provided not exercise the Borrower promptly files and diligently prosecutes right to file and/or prosecute any such claim or claims, the Borrower and Loan Parties shall have the right to prosecute settle claims with the reasonable prior consent of the Requisite Lenders. Upon the occurrence and file any such claim or claims and the Borrower shall cause any such award or compensation to be collected and promptly paid over to Lender; providedcontinuance of an Event of Default, that, the Borrower shall not agree to or accept any xxxx or compensation without Lender's prior written consent. Lender Agent may participate in such proceeds proceedings or negotiations, negotiations upon prior notice to Loan Parties and the Borrower Loan Parties will deliver or cause to be delivered to Lender allAgent all instruments requested by Agent to permit such participation; provided, however, that Agent shall be under no obligation to question the amount of the award or compensation. Although it is hereby expressly agreed that the same shall not be necessary, and in any event, Loan Parties shall, upon demand of Agent, make, execute and deliver any and all assignments and other instruments sufficient for the purpose of assigning any such award or compensation in excess of the Condemnation Threshold to Agent, free and clear of any encumbrances of any kind or nature whatsoever other than Permitted Encumbrances. In connection with a taking where the condemnation award or compensation exceeds the Condemnation Threshold, Agent may be represented by counsel satisfactory to it at the reasonable expense of Loan Parties. Loan Parties will pay within ten (10) days after demand therefor reasonable and documented out-of-pocket costs and expenses (including attorneys’ fees and disbursements and fees and disbursements of any appraiser or other consultant) incurred by Agent in connection with any Taking and seeking and obtaining any award or payment on account thereof. (b) Loan Parties shall, at their sole cost and expense, promptly commence and diligently and continually perform to completion the Restoration in a good and workmanlike manner and in compliance with all Legal Requirements and the requirements of the Permitted Encumbrances, whether or not Loan Parties shall have satisfied the Release Conditions in order to cause the Net Restoration Award to be made available for such Restoration and whether or not such awards or compensation, if any, on account of the Taking shall be sufficient for such purpose. (c) All Net Restoration Awards payable on account of a Taking in excess of the Condemnation Threshold (for the avoidance of doubt, it is understood that all Net Restoration Awards payable on account of a Taking in excess of the Condemnation Threshold shall be deposited with Agent, not merely the portion of such proceeds which exceeds the Condemnation Threshold) shall be held by Agent at its election in an interest bearing account. All such Net Restoration Awards shall be applied as follows: (i) If the Release Conditions are satisfied (other than the Release Condition described in Section 6.12(d)(i)(A), which Release Condition shall not be applicable to a Taking), and the Taking is not a Material Taking, all Net Restoration Awards shall be applied to pay the cost of Restoration in accordance with the terms of the Ground Lease, such application to be effected in the same manner as provided in Section 6.12(d) with respect to Net Restoration Awards and the balance, if any, of such Net Restoration Awards shall, at the option of Agent, be applied as a prepayment of the principal amount of the Loan (and, provided that no Event of Default shall have occurred and be continuing, without payment of the Prepayment Fee or any other prepayment premium, fee or penalty (for the avoidance of doubt, it is agreed that the payment of Additional Interest shall not be deemed to be a penalty or premium)) or be paid over or assigned to Loan Parties following completion of the Restoration. (ii) If the Taking is a Material Taking or one or more of the Release Conditions are not satisfied within one hundred eighty (180) days of the date of the Taking (other than the Release Condition described in Section 6.12(d)(i)(B), which Release Condition shall not be applicable to a Taking), all Net Restoration Awards being held by Agent or Loan Parties shall be applied in accordance with Section 6.12(h). (iii) In the case of a Taking for temporary use, any Net Restoration Awards shall be treated as business interruption/rent loss proceeds and shall be applied as set forth in Section 6.12(g). (iv) Upon a Taking, if the disposition of the Net Restoration Awards is governed by Section 6.13(c)(ii), at the option of Agent, the Loan shall be due and payable upon sixty (60) days prior written notice to Loan Parties, or if earlier, the Maturity Date. Regardless of whether Agent shall so elect to accelerate the maturity of the Loan as aforesaid, Agent shall have the option to (i) make available the Net Restoration Awards to Loan Parties for Restoration in the manner provided in Section 6.12(d) or (ii) apply the Net Restoration Awards to the Obligations, in such order and manner as Agent determines, as the case may be without payment of the Prepayment Fee (unless an Event of Default shall then be continuing, in which event the Prepayment Fee shall be due and payable) or any other prepayment premium, fee or penalty (for the avoidance of doubt, it is agreed that the payment of Additional Interest shall not be deemed to be a penalty or premium). (d) Notwithstanding anything to the contrary contained in this Section 6.13, in the event of any conflict between the provisions of this Section 6.13 and the Ground Lease with respect to the payment or application of any Net Restoration Award, the provisions of the Ground Lease shall control. In amplification of the foregoing sentence, the Net Restoration Award shall be applied to the costs of Restoration to the extent required by the Ground Lease provided that (i) the Release Conditions (C), (F) and (I) set forth in Section 6.12(d) have been satisfied and (ii) the disbursement of any Net Restoration Award shall be subject to Section 6.12(i). If Loan Parties or their Affiliates should hereafter acquire the lessor’s interest in the Ground Lease, the provisions of this Section 6.13(d) shall automatically cease to be of any force or effect.

Appears in 1 contract

Samples: Loan Agreement (Sunstone Hotel Investors, Inc.)

Taking of the Mortgaged Property. (a) In case Promptly after Borrower obtains knowledge of a Taking the occurrence thereof, Borrower shall notify Administrative Agent of any Condemnation or the commencement of any proceeds proceedings or negotiations that which might result in a Taking, the Borrower immediately will give Condemnation. Such notice thereof to Lender shall generally describing describe the nature and extent of such Taking Condemnation or the nature of such proceedings or negotiations and the nature and extent of the Taking Condemnation which might result therefrom. Lender Administrative Agent shall be entitled hereunder to all awards or compensation payable on account of a TakingCondemnation to be applied in the manner set forth herein. The Borrower hereby irrevocably assigns, transfers and sets over to Lender Administrative Agent all rights of the Borrower to any such awards or compensation and irrevocably authorizes and empowers Lender Administrative Agent, in the name of the Borrower or otherwise, to collect and receive receipt for any such award or compensation and delegates to Administrative Agent the right to file and prosecute any and all claims for any such awards or compensationcompensation and to participate in any and all hearings, trials and appeals in connection with a Condemnation on behalf of Borrower. Notwithstanding the foregoing, so long as no Default or Termination Payments Event of Default shall have occurred and shall then be continuing and provided the Borrower promptly files and diligently prosecutes such claim or claims, the Borrower shall have the right to prosecute and file any such claim or claims and the Borrower shall cause any such award or compensation to be collected and promptly paid over to Lender; provided, that, the Borrower shall not agree to or accept any xxxx or compensation without Lender's prior written consent. Lender Administrative Agent may participate in such proceeds proceedings or negotiations, negotiations and the Borrower will deliver or cause to be delivered to Lender allAdministrative Agent all instruments requested by Administrative Agent to permit such participation; provided, however, that Administrative Agent shall be under no obligation to question the amount of the award or compensation. Although it is hereby expressly agreed that the same shall not be necessary, and in any event, Borrower shall, upon demand of Administrative Agent, make, execute and deliver any and all assignments and other instruments sufficient for the purpose of assigning any such award or compensation to Administrative Agent, free and clear of any encumbrances of any kind or nature whatsoever. Administrative Agent may be represented in any Condemnation proceeding by counsel satisfactory to it at the expense of Borrower. All expenses incurred by Administrative Agent in connection with making any Condemnation and seeking and obtaining any award or payment on account thereof (including reasonable attorneys’ fees and reasonable fees of any appraiser or other consultant) shall be a part of the Indebtedness and shall be due and payable to Administrative Agent upon demand. (b) Borrower shall, at its sole cost and expense, promptly commence and diligently and continuously perform to completion the Restoration in a good and workmanlike manner and in compliance with all Laws and the requirements of the Permitted Encumbrances, whether or not Borrower shall have satisfied the Release Conditions in order to cause the Net Restoration Award to be made available for such Restoration and whether or not such awards or compensation, if any, on account of the Taking shall be sufficient for such purpose. (c) All Net Restoration Awards shall be held by Administrative Agent at its election. All Net Restoration Awards shall be applied as follows: (i) If the Condemnation is not a Material Condemnation, the amount of Net Restoration Award is less than $5,000,000.00 (the “Net Restoration Award Threshold”), and there is no Default then in existence, the Net Restoration Award shall be held by the Borrower and applied by the Borrower to pay the cost of the Restoration. (ii) If the Condemnation is not a Material Condemnation, and the amount of the Net Restoration Award is equal to or greater than the Net Restoration Award Threshold, provided that the Release Conditions are satisfied, the Net Restoration Award shall be made available to the Borrower to pay the cost of Restoration, such application to be effected in the same manner and subject to the conditions provided in Section 4.8(d) with respect to Net Proceeds. Any Net Restoration Awards remaining after the Restoration and the payment in full of all costs incurred in connection with the Restoration, in Administrative Agent’s sole discretion, either will be distributed by Administrative Agent to Borrower or applied as a mandatory prepayment of the Loan. (iii) If the Condemnation is a Material Condemnation, or, the satisfaction of the Release Conditions is required in order for Borrower to receive a Net Restoration Award and one or more of the Release Conditions are not satisfied, all Net Restoration Awards shall be applied in accordance with Section 4.10. (iv) In the case of a Condemnation for temporary use, any Net Restoration Awards shall be deposited and applied in the same manner and subject to the conditions provided with respect to business interruption/rent loss insurance proceeds.

Appears in 1 contract

Samples: Loan Agreement (Skechers Usa Inc)

Taking of the Mortgaged Property. (a) In Promptly, and in any case within one (1) Business Day after the occurrence thereof, Borrower shall notify Agent of a any Taking of any portion of any Mortgaged Property or the commencement of any proceeds proceedings or negotiations that which might result in such a Taking, the Borrower immediately will give . Such notice thereof to Lender shall generally describing describe the nature and extent of such Taking or the nature of such proceedings or negotiations and the nature and extent of the Taking which might result therefrom. Lender Agent shall be entitled hereunder to all awards or compensation payable on account of a Taking. The Borrower hereby irrevocably assigns, transfers and sets over to Lender Agent all rights of the Borrower to any such awards or compensation and irrevocably authorizes and empowers Lender Agent, in the name of the Borrower or otherwise, to collect and receive receipt for any such award or compensation and delegate to Agent the right to file and prosecute any and all claims for any such awards or compensationcompensation and to participate in any and all hearings, trials and appeals in connection with a Taking on behalf of Borrower. Notwithstanding the foregoing, so long as no Default or Termination Payments Event of Default shall have occurred and shall then be continuing and provided the Borrower promptly files and diligently prosecutes such claim or claims, the Borrower shall have the right to prosecute and file any such claim or claims and the Borrower shall cause any such award or compensation to be collected and promptly paid over to Lender; provided, that, the Borrower shall not agree to or accept any xxxx or compensation without Lender's prior written consent. Lender Agent may participate in such proceeds proceedings or negotiations, negotiations and the Borrower will deliver or cause to be delivered to Lender allAgent all instruments requested by Agent to permit such participation; provided, however, that Agent shall be under no obligation to question the amount of the award or compensation. Although it is hereby expressly agreed that the same shall not be necessary, and in any event, Borrower shall, upon demand of Agent, make, execute and deliver any and all assignments and other instruments sufficient for the purpose of assigning any such award or compensation to Agent, free and clear of any encumbrances of any kind or nature whatsoever. Agent may be represented by counsel satisfactory to it at the expense of Borrower. Borrower will pay promptly after demand all costs and expenses (including attorneys’ fees and disbursements and any appraiser or other consultant) incurred by Agent in connection with any Taking and seeking and obtaining any award or payment on account thereof. (b) Borrower shall, at its sole cost and expense, promptly commence and diligently and continuously perform to completion the Restoration in a good and workmanlike manner and in compliance with all Legal Requirements and the requirements of the Permitted Encumbrances, whether or not Borrower shall have satisfied the Release Conditions in order to cause the Net Restoration Award to be made available for such Restoration and whether or not such awards or compensation, if any, on account of the Taking shall be sufficient for such purpose. (c) All Net Restoration Awards shall be held by Agent at its election. All Net Restoration Awards shall be applied as follows: (i) If the Release Conditions are satisfied, and the Taking is not a Material Taking, all Net Restoration Awards shall be applied to pay the cost of Restoration, such application to be effected in the same manner as provided in Section 8.12(d) hereof with respect to Net Proceeds and the balance, if any, of such Net Restoration Awards shall, at the option of Agent, be applied as a prepayment of the principal amount of the Loan or be paid over or assigned to Borrower following completion of the Restoration. (ii) If the Taking is a Material Taking, or one or more of the Release Conditions are not satisfied, all Net Restoration Awards shall be applied in accordance with Section 8.14 hereof. (iii) In the case of a Taking for temporary use, any Net Restoration Awards shall be deposited by Agent into the Cash Flow Collection Account; and (iv) Notwithstanding anything to the contrary in this Section 8.13, in the event that Borrower elects to have a Property released and Agent is holding Net Proceeds in connection with the Taking of such Property, Agent shall release such Net Proceeds to Borrower upon payment of the Release Payment or Borrower may elect to reduce the Release Payment by the amount of such Net Proceeds, which Net Proceeds shall then constitute a portion of the Release Payment and be applied pursuant to Section 2.4(b) hereof.

Appears in 1 contract

Samples: Loan Agreement (Gramercy Capital Corp)

Taking of the Mortgaged Property. (a) In case of a Taking of any portion of the Mortgaged Property or the commencement of any proceeds proceedings or negotiations that which might result in a Taking, the Borrower immediately Borrowers promptly will give notice thereof to Lender Agent. Such notice shall generally describing describe the nature and extent of such Taking or the nature of such proceedings or negotiations and the nature and extent of the Taking which might result therefrom. Lender Agent shall be entitled hereunder to all awards or compensation payable on account of a TakingTaking (“Awards”), which Awards shall be applied to Restoration in accordance with the provisions of this Section 5.13. The Borrower Borrowers hereby irrevocably assignsassign, transfers transfer and sets set over to Lender Agent all rights of the Borrower Borrowers to any such awards or compensation Awards and irrevocably authorizes and empowers Lender Agent, in the name of the Borrower Borrowers or otherwise, to collect and receive receipt for any such award or compensation Awards and delegates to Agent the right to file and prosecute any and all claims for any such awards or compensationAwards and to participate in any and all hearings, trials and appeals in connection with a Taking that is reasonably likely to result in Net Restoration Award in excess of than (x) with respect to the Hotel Property, $2,766,000 and (y) with respect to the Garage Property, $922,000 49289660 (“Condemnation Proceeds Disbursement Threshold”) on behalf of Borrowers. Notwithstanding the foregoing, so long as no Default or Termination Payments Event of Default shall have occurred and shall then be continuing and provided the Borrower promptly files and diligently prosecutes such claim or claims, the Borrower shall have the right to prosecute and file any such claim or claims and the Borrower shall cause any such award or compensation to be collected and promptly paid over to Lender; provided, that, the Borrower shall not agree to or accept any xxxx or compensation without Lender's prior written consent. Lender Agent may participate in such proceeds proceedings or negotiations, negotiations and the Borrower Borrowers will deliver or cause to be delivered to Lender allAgent all instruments requested by Agent to permit such participation; provided, however, that Agent shall be under no obligation to question the amount of the Awards. Although it is hereby expressly agreed that the same shall not be necessary, Borrowers shall, upon demand of Agent, make, execute and deliver any and all assignments and other instruments sufficient for the purpose of assigning any Awards to Agent, free and clear of any encumbrances of any kind or nature whatsoever. Agent may be represented by counsel satisfactory to it at the expense of Borrowers. Borrowers will pay promptly after demand all costs and expenses (including reasonable attorneys’ fees and disbursements and any appraiser or other consultant) incurred by Agent in connection with any Taking and seeking and obtaining any Awards on account thereof. (b) At all times during the Term, Borrowers will, at its sole cost and expense, promptly commence and diligently and continuously perform to completion the Restoration, in a good and workmanlike manner, and in compliance with all Legal Requirements, Permitted Encumbrances, the Leases and otherwise with the requirements set forth in this Agreement whether or not Borrowers shall have satisfied the requirements of Section 5.12(d) in order to cause the Net Restoration Award to be made available for such Restoration and whether or not the Awards, if any, on account of such Taking shall be sufficient for the purpose. (c) In the case of any Condemnation with respect to which the Award is equal to or greater than the Condemnation Proceeds Disbursement Threshold, the Net Restoration Awards shall be held by Agent and be made available to the Borrowers for Restoration upon the determination of Agent, in its sole discretion, that the Release Conditions (Condemnation) are satisfied (and to the extent Agent makes a determination that such Release Conditions (Condemnation) have been satisfied, the procedure in clause (i) shall apply): (i) The Net Restoration Awards shall be applied to pay the cost of Restoration, such application to be effected in the same manner as provided in Section 5.12(d) with respect to Net Restoration Awards and the balance, if any, of such Net Restoration Awards shall, at the option of Agent, be applied as set forth in Section 2.6 or be paid over or assigned to Borrower following completion of the Restoration. (ii) Intentionally left blank; (iii) The release of any Net Restoration Awards shall be subject to the satisfaction (or waiver by Agent) of each of the following conditions (each a “Release Condition (Condemnation)” and collectively, the “Release Conditions (Condemnation)”): (A) less than ten percent (10%) of the land constituting the Property is taken, and such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land; (B) [Intentionally omitted]; (C) the Loan to Value Ratio after giving effect to the Restoration, shall be equal to or less than 50.0%; (D) no Default or Event of Default shall have occurred and be continuing; 49289660 (E) Borrowers shall have delivered to Agent within sixty (60) days after the occurrence of the Condemnation, a notice of Borrowers’ desire to undertake the Restoration; (F) Borrower shall have demonstrated to the reasonable satisfaction of Agent that the Restoration will be completed in accordance with any requirements under the Operations Agreements, Permitted Encumbrances, Hotel Management Agreement, Garage Management Agreement (if and to the extent applicable), and such agreements shall remain in effect after any such Restoration; (G) Borrowers shall have demonstrated to the reasonable satisfaction of Agent that the Restoration can be completed no later than three (3) months prior to the then current Maturity Date; (H) Borrowers shall have demonstrated to the reasonable satisfaction of Agent that sufficient funds are available to Borrower through projected revenue as determined by Agent in good faith, rent and/or business interruption insurance maintained pursuant to Section 5.11, cash, and/or a letter of credit or other similar cash-equivalent security reasonably satisfactory to Agent as to form, content and issuer, and which shall be for the benefit of Agent, to pay all debt service with respect to the Loan and all operating expenses with respect to the Mortgaged Property during the period reasonably estimated by Borrower as necessary for the completion of the Restoration; (I) prior to the making of any disbursement hereunder, Guarantor (or another guarantor acceptable to Agent in its sole discretion) shall have executed and delivered to Agent a completion guaranty in form and substance reasonably acceptable to Agent, which shall guaranty the Lien free completion of the Restoration; and (J) to the extent the Net Restoration Awards are insufficient to pay the costs of the Restoration (as estimated by the Independent Architect and approved by Agent in its reasonable discretion) prior to the initial disbursement of Net Restoration Awards, Borrowers shall have provided Agent with a letter of credit, cash deposit or similar equivalent security in the amount of such deficiency in form, content and issuer reasonably satisfactory to Agent. (iv) In the case of a Taking for temporary use, any Net Restoration Awards shall be held by Agent and applied in the same manner as business interruption insurance proceeds in accordance with Section 5.12(g) during the term of the Taking and after such application as a prepayment of the principal amount of the Loan. (d) Notwithstanding anything to the contrary contained in this Section 5.13, in the event of any conflict between the provisions of this Section 5.13 and the provisions of the Hotel Management Agreement with respect to the holding, disbursement and/or use of Awards with respect to the Hotel, the provisions of the Hotel Management Agreement shall govern and control.

Appears in 1 contract

Samples: Loan Agreement (Creative Media & Community Trust Corp)

Taking of the Mortgaged Property. (a) In case Borrower and Operating Lessee hereby irrevocably assign, transfer and set over to Agent all of a Taking or the commencement of any proceeds or negotiations that might result their rights in a Taking, the Borrower immediately will give notice thereof to Lender generally describing the nature and extent of such Taking or the nature of such proceedings or negotiations and the nature and extent of the Taking which might result therefrom. Lender shall be entitled hereunder to all awards or compensation payable on account of a Taking. The Agent shall be entitled to collect and receive all awards or compensation payable on account of a Taking. Borrower hereby and Operating Lessee irrevocably assignsauthorize and empower Agent, transfers in the name of Borrower or Operating Lessee or otherwise, to file and sets over to Lender all rights of the Borrower to any prosecute in its own name what would otherwise be Borrower’s or Operating Lessee’s claim for such awards or compensation and irrevocably authorizes and empowers Lender in the name of the Borrower or otherwise, to collect and receive any such award or compensation and to file and prosecute any and all claims for any such awards or compensation. Notwithstanding the foregoing, so long as no Default or Termination Payments Event of Default shall have occurred and shall then be continuing and provided the Borrower promptly files and diligently prosecutes such claim or claims, the Borrower shall have the right to prosecute and file any such claim or claims and the Borrower shall cause any such award or compensation to be collected and promptly paid over to Lender; provided, that, the Borrower shall not agree to or accept any xxxx or compensation without Lender's prior written consent. Lender Agent may participate in such proceeds any and all hearings, trials, appeals, proceedings and negotiations in connection with a Taking and awards and compensation on behalf of Borrower and Operating Lessee or negotiations, otherwise and the Borrower will and Operating Lessee shall deliver or cause to be delivered to Lender allAgent all instruments requested by Agent to permit such participation; provided, however, that Agent shall be under no obligation to question or maximize the amount of the award or compensation or obtain any particular amount of award or compensation. Although it is hereby expressly agreed that the same shall not be necessary, and in any event, Borrower and Operating Lessee shall, upon demand of Agent, make, execute and deliver any and all assignments and other instruments sufficient for the purpose of assigning any such award or compensation to Agent, free and clear of any encumbrances of any kind or nature whatsoever. Agent may be represented by counsel satisfactory to it. Borrower and Operating Lessee shall pay promptly after demand all reasonable costs and expenses (including fees and disbursements of attorneys, appraisers and other consultants) incurred by Agent in connection with any Taking and seeking and obtaining any award or payment on account thereof.

Appears in 1 contract

Samples: Loan Agreement (Ashford Hospitality Prime, Inc.)

Taking of the Mortgaged Property. (a) In case of a Taking or the commencement of any proceeds proceedings or negotiations that which might result in a Taking, the Borrower immediately Mortgagor promptly will give notice thereof to Lender the Mortgagee. Such notice shall generally describing describe the nature and extent of such Taking or the nature of such proceedings or negotiations and the nature and extent of the Taking which might result therefrom. Lender shall be entitled hereunder to all awards or compensation payable on account of a Taking. The Borrower Mortgagor hereby irrevocably assigns, transfers and sets over to Lender the Mortgagee all rights of the Borrower Mortgagor to any such awards or compensation and irrevocably authorizes and empowers Lender the Mortgagee, in the name of the Borrower Mortgagor or otherwise, to collect and receive receipt for any such award or compensation and delegate to the Mortgagee the right to file and prosecute any and all claims for any such awards or compensationcompensation and to participate in any and all hearings, trials and appeals in connection with a Taking on behalf of the Mortgagor. Notwithstanding the foregoing, so long as no First Tier Default or Termination Payments Event of Default shall have occurred and shall then be continuing and provided the Borrower Mortgagor promptly files all claims and diligently prosecutes such claim or claimssame, the Borrower Mortgagor shall have the right (i) to file and prosecute any claim for such awards and file (ii) provided such awards or compensation are not payable on account of a Material Taking, to collect and receipt for and, subject to the terms hereof and of the other Financing Documents, hold all awards or compensation payable on account of a Taking; provided, however, that the Mortgagor will not agree to any adjustment or settlement of any such claim or claims and payable with respect to a Taking the Borrower shall cause any such award or compensation with respect to be collected and promptly paid over to Lender; provided, that, which is greater than $250,000 (a "Material Taking") without the Borrower shall not agree to or accept any xxxx or compensation without LenderMortgagee's prior written consent, which consent shall not be unreasonably withheld. Lender The Mortgagee may participate in such proceeds proceedings or negotiations, negotiations and the Borrower Mortgagor will deliver or cause to be delivered to Lender allthe Mortgagee all instruments requested by the Mortgagee to permit such participation; provided, however, that the Mortgagee shall be under no obligation to question the amount of the award or compensation. Although it is hereby expressly agreed that the same shall not be necessary, in any event, the Mortgagor shall, upon demand of the Mortgagee, make, execute and deliver any and all assignments and other instruments sufficient for the purpose of assigning any such award or compensation to the Mortgagee, free and clear of any encumbrances of any kind or nature whatsoever. The Mortgagee may be represented by counsel reasonably satisfactory to it at the expense of the Mortgagor. The Mortgagor will pay promptly after demand all reasonable out-of-pocket costs and expenses (including reasonable attorneys' fees and disbursements and any appraiser or other consultant) incurred by the Mortgagee in connection with any Taking and seeking and obtaining any award or payment on account thereof. (b) If the Taking is not a Total Taking, the Mortgagor will, at its sole cost and expense, promptly commence and diligently complete the Restoration, whether or not the awards or compensation, if any, on account of such Taking shall be sufficient for the purpose. (c) In the case of any Material Taking or Total Taking, the Net Restoration Awards shall be held, at the Mortgagee's election, by the Mortgagee as part of the Mortgaged Property, and shall be applied as follows: (i) Subject to the occurrence of any of the conditions set forth in Section 7(e) hereof, if the Release Conditions are satisfied and the Taking is not a Total Taking, all Net Restoration Awards shall be disbursed by the Mortgagee to the Mortgagor to pay the cost of Restoration, such disbursement to be effected in the same manner as provided in Section 7(d) hereof with respect to Net Proceeds. All reasonable costs and expenses incurred by the Mortgagee in connection with making the Net Restoration Awards available for the Restoration (including reasonable attorneys' fees and disbursements and reasonable fees and actual out-of-pocket expenses of the Mortgagee's construction consultants and inspectors) shall be paid by the Mortgagor. Any Net Restoration Awards remaining after the Restoration and the payment in full of all costs incurred in connection with the Restoration shall be distributed to the Mortgagor provided that no First Tier Default or Event of Default exists and the conditions set forth in Section 2.11(a) of the Credit Agreement remain satisfied after taking into account the Appraised Value of the Premises after Restoration (which Appraised Value shall, if required by the Mortgagee, be established by an Appraisal giving effect to the Restoration and prepared at the Mortgagor's expense). (ii) If any of the conditions set forth in Section 7(e) hereof occurs or the Taking is a Total Taking, all Net Restoration Awards shall be applied in accordance with Section 9 hereof. (d) In the case of a Taking for temporary use, any Net Restoration Awards shall be held by the Mortgagee and provided no Event of Default shall have occurred and be continuing, shall be allocated, and disbursed, by the Mortgagee in its reasonable discretion in the same priorities set forth in Section 2.20(f)(i) through (vii) of the Credit Agreement, provided the debt service referred to therein shall mean the portion of the Loans and Letters of Credit advanced to the Mortgagor and other Secured Obligations fairly allocated to the Premises in the Mortgagee's reasonable discretion. Any excess award shall be distributed to the Mortgagor provided that no First Tier Default or Event of Default exists and the conditions set forth in Section 2.11(a) of the Credit Agreement remain satisfied after taking into account the Appraised Value of the Premises, which Appraised Value shall, if required by the Mortgagee, be established by an Appraisal giving effect to such Taking and the circumstances at the time that the Taking ends prepared at the Mortgagor's expense.

Appears in 1 contract

Samples: Credit Agreement (Ashford Hospitality Trust Inc)

Taking of the Mortgaged Property. (a) In Promptly, and in any case within three (3) Business Days after the occurrence thereof, the applicable Borrower shall notify Agent of a any Taking of any portion of its respective Borrowing Base Property or the commencement of any proceeds proceedings or negotiations that which might result in such a Taking, the Borrower immediately will give . Such notice thereof to Lender shall generally describing describe the nature and extent of such Taking or the nature of such proceedings or negotiations and the nature and extent of the Taking which might result therefrom. Lender Agent shall be entitled hereunder to all awards or compensation payable on account of a any Material Taking. The Each Borrower hereby irrevocably assigns, transfers and sets over to Lender Agent all rights of the each such Borrower to any such awards or compensation and irrevocably authorizes and empowers Lender Agent, in the name of the such Borrower or otherwise, to collect and receive receipt for any such award or compensation and delegate to Agent the right to file and prosecute any and all claims for any such awards or compensation and to participate in any and all hearings, trials and appeals in connection with a Taking on behalf of the applicable Borrower; provided, however, that Agent shall be under no obligation to question the amount of any award or compensation. Notwithstanding the foregoing, so long as no Default or Termination Payments Event of Default shall have occurred and shall then be continuing and provided the Borrower promptly files such Borrowers files, all claims and diligently prosecutes same, such claim or claims, the Borrower shall have the right to file, adjust, settle and prosecute any claim for and file receive such award or compensation; provided, however, that such Borrower shall not agree to any adjustment or settlement of any such claim or claims payable with respect to a Major Taking without Agent’s prior consent which will not be unreasonably withheld. Although it is hereby expressly agreed that the same shall not be necessary, and in any event, each Borrower shall, upon demand of Agent, make, execute and deliver any and all assignments and other instruments sufficient for the Borrower shall cause purpose of assigning any such award or compensation to Agent, free and clear of any encumbrances of any kind or nature whatsoever. Agent may be collected represented by counsel satisfactory to it at the expense of such Borrower. Each Borrower will pay promptly after demand all costs and expenses (including reasonable attorneys’ fees and disbursements and any appraiser or other consultant) incurred by Agent in connection with any Taking and seeking and obtaining any award or payment on account thereof. (b) Each Borrower shall, at its sole cost and expense, promptly commence and diligently and continuously perform to completion the Restoration in a good and workmanlike manner and in compliance with all Legal Requirements and the requirements of the Permitted Encumbrances, whether or not such Borrower shall have satisfied the Release Conditions in order to cause the Net Restoration Award to be made available for such Restoration and whether or not such awards or compensation, if any, on account of the Taking shall be sufficient for such purpose. (c) In the case of a Taking which is not a Major Taking, so long as no Default or Event of Default shall have occurred and be continuing, all Net Restoration Awards relating thereto may be retained by the applicable Borrower. Subject to the rights of Agent set forth herein during an Event of Default, such Net Restoration Awards shall be used by Borrowers solely for purposes of performing and completing the Restoration in accordance with this Agreement. All Net Restoration Awards arising out of Material Takings shall be held and applied by Agent as follows: (i) If the Release Conditions (and for purposes of this Section 5.21, such Release Conditions shall apply to a Taking as if it were a Casualty) are satisfied within the time period set forth in Section 5.20(d) hereof, all Net Restoration Awards shall be applied to pay the cost of Restoration, such application to be effected in the same manner as provided in Section 5.20(d) hereof (and for purposes of this Section 5.21, such Release Conditions shall apply to a taking as if it were a Casualty) with respect to Net Proceeds and the balance, if any, of such Net Restoration Awards shall, if no Default or Event of Default exists, be paid over or assigned to Lender; the applicable Borrower following completion of the Restoration. (ii) If the Taking is a Material Taking, and one or more of the Release Conditions are not satisfied within the time period set forth in Section 5.20(d) hereof, all Net Restoration Awards shall be applied in accordance with Section 5.22 hereof, provided, that, if each of the Borrower Release Conditions shall have been satisfied except the Release Condition set forth in Section 5.20(d)(i)(A) hereof as a result of the occurrence of a Default (as opposed to the occurrence of an Event of Default), Agent shall not agree so apply the Net Restoration Awards until such time, if any, as an Event of Default shall have occurred. (iii) In the case of a Taking for temporary use, any Net Restoration Awards shall be applied to or accept any xxxx or compensation without Lender's prior written consent. Lender may participate the Obligations in such proceeds order as Agent may elect. (d) To the extent that any sums are held by Agent in an account or negotiationssubaccount of Agent pursuant to this Section 5.21, and the Borrower will deliver or cause such sums shall bear interest at a rate per annum which is substantially similar to be delivered interest rates offered by Agent to Lender allsimilarly situated Borrowers for comparable deposits held in similar accounts.

Appears in 1 contract

Samples: Credit Agreement (Hines Real Estate Investment Trust Inc)

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Taking of the Mortgaged Property. (a) In Promptly, and in any case within three (3) Business Days after the occurrence thereof, Borrower Parties shall notify Agent of a any Taking of any portion of any Property or the commencement of any proceeds proceedings or negotiations that which might result in such a Taking, the Borrower immediately will give . Such notice thereof to Lender shall generally describing describe the nature and extent of such Taking or the nature of such proceedings or negotiations and the nature and extent of the Taking which might result therefrom. Lender Agent shall be entitled hereunder to all awards or compensation payable on account of a TakingTaking if such awards or compensation exceed the Condemnation Threshold. The Each Borrower Party hereby irrevocably assigns, transfers and sets over to Lender Agent all rights of the such Borrower Party to any such awards or compensation and irrevocably authorizes and empowers Lender Agent, in the name of the such Borrower Party or otherwise, to collect and receive receipt for any such award or compensation and delegate to Agent the right to file and prosecute any and all claims for any such awards or compensation. Notwithstanding compensation and to participate in any and all hearings, trials and appeals in connection with a Taking on behalf of Borrower Parties to the foregoingextent the condemnation award or compensation exceeds the Condemnation Threshold; provided that, so long as no Default or Termination Payments Event of Default shall have occurred and be continuing, Agent shall then be continuing and provided not exercise the Borrower promptly files and diligently prosecutes right to file and/or prosecute any such claim or claims, the and Borrower Parties shall have the right to prosecute settle claims with the prior consent of Agent (not to be unreasonably withheld, conditioned or delayed). Upon the occurrence and file continuance of an Event of Default, Agent may participate in such proceedings or negotiations upon prior notice to Borrower Parties and Borrower Parties will deliver or cause to 62383226 80 be delivered to Agent all instruments requested by Agent to permit such participation; provided, however, that Agent shall be under no obligation to question the amount of the award or compensation. Although it is hereby expressly agreed that the same shall not be necessary, and in any such claim or claims event, Borrower Parties shall, upon demand of Agent, make, execute and deliver any and all assignments and other instruments sufficient for the Borrower shall cause purpose of assigning any such award or compensation in excess of the Condemnation Threshold to Agent, free and clear of any encumbrances of any kind or nature whatsoever. Agent may be represented by counsel satisfactory to it at the expense of Borrowers. Borrowers will pay promptly after demand all costs and expenses (including reasonable attorneys’ fees and disbursements and costs and expenses of any appraiser or other consultant) incurred by Agent in connection with any Taking and seeking and obtaining any award or payment on account thereof. (b) Borrower Parties shall, at the sole cost and expense of Borrowers, promptly commence and diligently and continuously perform to completion the Restoration in a good and workmanlike manner and in compliance with all Legal Requirements and the requirements of the Permitted Encumbrances, whether or not Borrower Parties shall have satisfied the Release Conditions in order to cause the Net Restoration Award to be collected made available for such Restoration and promptly paid over to Lender; providedwhether or not such awards or compensation, thatif any, on account of the Borrower Taking shall not agree to or accept any xxxx or compensation without Lender's prior written consentbe sufficient for such purpose. (c) All Net Restoration Awards in excess of the Condemnation Threshold shall be held by Agent at its election. Lender may participate in All such proceeds or negotiations, and the Borrower will deliver or cause to Net Restoration Awards shall be delivered to Lender allapplied as follows:

Appears in 1 contract

Samples: Loan Agreement (Ashford Hospitality Prime, Inc.)

Taking of the Mortgaged Property. (a) In case of a Taking or the commencement of any proceeds or negotiations that might result in a Taking, the Borrower immediately will give notice thereof to Lender generally describing the nature and extent of such Taking or the nature of such proceedings or negotiations and the nature and extent of the Taking which might result therefrom. Lender shall be entitled hereunder to all awards or compensation payable on account of a Taking. The Borrower hereby irrevocably assigns, transfers and sets over to Lender Agent all rights of the Borrower to any such awards or compensation payable on account of a Taking and irrevocably authorizes and empowers Lender Agent, in the name of the Borrower or otherwise, to collect and receive any such award or compensation and delegate to Agent the right to file and prosecute any and all claims for any such awards or compensation and to participate in any and all hearings, trials and appeals in connection with a Taking on behalf of Borrower and (iii) Agent may participate in such proceedings or negotiations and Borrower will deliver or cause to be delivered to Agent all instruments requested by Agent to permit such participation; provided, however, that Agent shall be under no obligation to question or maximize the amount of the award or compensation or obtain any particular amount of award or compensation. Although it is hereby expressly agreed that the same shall not be necessary, and in any event, Borrower shall, upon demand of Agent, make, execute and deliver any and all assignments and other instruments sufficient for the purpose of assigning any such award or compensation to Agent, free and clear of any encumbrances of any kind or nature whatsoever. Agent may be represented by counsel satisfactory to it, the reasonable expenses of which shall be paid by Borrower. (b) Notwithstanding the foregoingSection 7.13(a) hereof, so long as no First Tier Default or Termination Payments Event of Default shall have occurred and shall then be continuing and provided the Borrower promptly files all claims and diligently prosecutes such claim or claimssame, the Borrower shall have the right to prosecute collect and file receive any such claim or claims and the Borrower shall cause any such award or compensation arising from a Taking, and to file and prosecute all claims for such awards and Agent shall not collect or receive such awards or file or prosecute such a claim or participate in the proceedings or negotiations thereof except for (i) awards or compensation with respect to temporary Takings and (ii) Takings on account of which the award and compensation thereof are reasonably expected to be collected or is greater than $300,000 (the “Condemnation Proceeds Disbursement Threshold”), and promptly paid over to Lender; provided, provided that, the in any event, Borrower shall not agree to any adjustment or accept settlement of any xxxx or such claim payable with respect to a Taking the award and compensation with respect to which are reasonably expected to be greater than the Condemnation Proceeds Disbursement Threshold without Lender's Agent’s prior written consent. Lender Borrower shall pay promptly after demand all reasonable costs and expenses (including reasonable attorneys’ fees and disbursements and any appraiser or other consultant) incurred by Agent in connection with any Taking and seeking and obtaining any award or payment on account thereof. Awards and compensation held by Agent, together with any interest earned thereon, shall constitute additional security for the payment of the Obligations (a security interest therein being granted hereby), until disbursed in accordance with this Section 7.13 or Section 7.14 hereof, as the case may participate be. Notwithstanding the foregoing, or anything else herein, to the contrary, all awards and compensation for temporary Takings may be collected by and shall be paid to Agent and applied in accordance with Section 7.13(d)(iii) hereof. (c) Borrower shall use all awards and other compensation actually received by Borrower for Restoration to the extent required pursuant to the definition thereof herein. Borrower shall, at its sole cost and expense, promptly commence and diligently and continuously perform to completion the Restoration in a good and workmanlike manner and in compliance with all Legal Requirements and the requirements of the Permitted Encumbrances, whether or not Borrower shall have satisfied the Release Conditions in order to cause the Net Restoration Award to be made available for such proceeds Restoration and whether or negotiationsnot such awards or compensation, if any, on account of the Taking shall be sufficient for such purpose. (d) In the case of any Taking with respect to which the award and compensation payable are less than the Condemnation Proceeds Disbursement Threshold, the Net Restoration Award shall be payable directly to Borrower (or if paid to Agent, Agent shall disburse same to Borrower) for Restoration, provided that if any such Net Restoration Award remains after the completion of such Restoration, Borrower shall apply same to the Loan as a prepayment thereof in accordance with Section 2.4(e) hereof promptly after completion of such Restoration. In the case of any Taking with respect to which the award and compensation payable are equal to or greater than the Condemnation Proceeds Disbursement Threshold, the Net Restoration Award shall be held by Agent, if Agent so elects, as a part of the Collateral and shall be applied as follows: (i) If the Release Conditions are satisfied, and the Borrower will deliver or cause Taking is not a Material Taking, all Net Restoration Awards shall be applied to pay the cost of Restoration, such application to be delivered effected in the same manner as provided in Section 7.12(d) hereof with respect to Lender allNet Proceeds and the balance, if any, of such Net Restoration Awards shall, provided there exists no Event of Default, be distributed by Agent to Borrower following completion of the Restoration. (ii) If the Taking is a Material Taking, or one or more of the Release Conditions set forth in subsection (ii) through (vii) of Section 7.12(d) hereof are not satisfied within one hundred and twenty (120) days from and after the date of the Taking, all Net Restoration Awards shall be applied in accordance with Section 7.14 hereof. If an Event of Default occurs, all Net Restoration Awards shall also be applied in accordance with Section 7.14 hereof. If a First Tier Default occurs, or one or more of the Release Conditions set forth in subsection (viii) of Section 7.12(d) hereof are not satisfied, Agent shall, with respect to the applicable disbursement, continue to hold the Net Restoration Awards until those conditions are satisfied or, if applicable, such First Tier Default ceases to exist, subject to the other terms of this Section 7.13(d). (iii) In the case of a Taking for temporary use, any Net Restoration Awards shall be deposited with Agent and disbursed in accordance with Section 7.12(g) hereof for so long as such temporary Taking continues.

Appears in 1 contract

Samples: Loan Agreement (Great Wolf Resorts, Inc.)

Taking of the Mortgaged Property. (a) In case Within five (5) Business Days after the occurrence thereof, Loan Parties shall notify Agent of a any Taking of any portion of the Mortgaged Property or the commencement of any proceeds proceedings or negotiations that might which could be reasonably expected to result in such a Taking, the Borrower immediately will give . Such notice thereof to Lender shall generally describing describe the nature and extent of such Taking or the nature of such proceedings or negotiations and the nature and extent of the Taking which might result therefrom. Lender Agent shall be entitled hereunder to hold and apply in accordance with this Section 6.13 all awards or compensation payable to or on account of Loan Parties by reason of a TakingTaking if such awards or compensation exceed the Condemnation Threshold. The Borrower Each Loan Party hereby irrevocably assigns, transfers and sets over to Lender Agent all rights of the Borrower each Loan Party to any such awards or compensation and irrevocably authorizes and empowers Lender Agent, in the name of the Borrower Loan Parties or otherwise, to collect and receive receipt for any such award or compensation and grants to Agent the right to file and prosecute any and all claims for any such awards or compensation. Notwithstanding compensation and to participate in any and all hearings, trials and appeals in connection with a Taking on behalf of Loan Parties to the foregoingextent the condemnation award or compensation exceeds the Condemnation Threshold; provided that, so long as no Default or Termination Payments Event of Default shall have occurred and be continuing, Agent shall then be continuing and provided not exercise the Borrower promptly files and diligently prosecutes right to file and/or prosecute any such claim or claims, the Borrower and Loan Parties shall have the right to prosecute settle claims with the reasonable prior consent of the Requisite Lenders. Upon the occurrence and file any such claim or claims and the Borrower shall cause any such award or compensation to be collected and promptly paid over to Lender; providedcontinuance of an Event of Default, that, the Borrower shall not agree to or accept any xxxx or compensation without Lender's prior written consent. Lender Agent may participate in such proceeds proceedings or negotiations, negotiations upon prior notice to Loan Parties and the Borrower Loan Parties will deliver or cause to be delivered to Lender allAgent all instruments requested by Agent to permit such participation; provided, however, that Agent shall be under no obligation to question the amount of the award or compensation. Although it is hereby expressly agreed that the same shall not be necessary, and in any event, Loan Parties shall, upon demand of Agent, make, execute and deliver any and all assignments and other instruments sufficient for the purpose of assigning any such award or compensation in excess of the Condemnation Threshold to Agent, free and clear of any encumbrances of any kind or nature whatsoever other than Permitted Encumbrances. In connection with a taking where the condemnation award or compensation exceeds the Condemnation Threshold, Agent may be represented by counsel satisfactory to it at the reasonable expense of Loan Parties. Loan Parties will pay within ten (10) days after demand therefor reasonable and documented out-of-pocket costs and expenses (including attorneys’ fees and disbursements and fees and disbursements of any appraiser or other consultant) incurred by Agent in connection with any Taking and seeking and obtaining any award or payment on account thereof. (b) Loan Parties shall, at their sole cost and expense, promptly commence and diligently and continually perform to completion the Restoration in a good and workmanlike manner and in compliance with all Legal Requirements and the requirements of the Permitted Encumbrances, whether or not Loan Parties shall have satisfied the Release Conditions in order to cause the Net Restoration Award to be made available for such Restoration and whether or not such awards or compensation, if any, on account of the Taking shall be sufficient for such purpose. (c) All Net Restoration Awards payable on account of a Taking in excess of the Condemnation Threshold (for the avoidance of doubt, it is understood that all Net Restoration Awards payable on account of a Taking in excess of the Condemnation Threshold shall be deposited with Agent, not merely the portion of such proceeds which exceeds the Condemnation Threshold) shall be held by Agent in the Casualty/Taking Account in accordance with the Cash Management Agreement. All such Net Restoration Awards shall be applied as follows: (i) If the Release Conditions are satisfied, and the Taking is not a Material Taking, all Net Restoration Awards shall be applied to pay the cost of Restoration in accordance with the terms of the Ground Leases, such application to be effected in the same manner as provided in Section 6.12(d) with respect to Net Restoration Awards and the balance, if any, of such Net Restoration Awards shall, at the option of Agent, be applied as a prepayment of the principal amount of the Loan (and, provided that no Event of Default shall have occurred and be continuing, without payment of the Prepayment Fee or any other prepayment premium, fee or penalty (for the avoidance of doubt, it is agreed that the payment of Additional Interest shall not be deemed to be a penalty or premium)) or be paid over or assigned to Loan Parties following completion of the Restoration. (ii) If the Taking is a Material Taking or one or more of the Release Conditions are not satisfied within one hundred eighty (180) days of the date of the Taking, all Net Restoration Awards being held by Agent or Loan Parties shall be applied in accordance with Section 6.12(h). (iii) In the case of a Taking for temporary use, any Net Restoration Awards shall be treated as business interruption/rent loss proceeds and shall be applied as set forth in Section 6.12(g). (iv) Upon a Taking, if the disposition of the Net Restoration Awards is governed by Section 6.13(c)(ii), at the option of Agent, the Loan shall be due and payable upon sixty (60) days prior written notice to Loan Parties, or if earlier, the Maturity Date. Regardless of whether Agent shall so elect to accelerate the maturity of the Loan as aforesaid, Agent shall have the option to (i) make available the Net Restoration Awards to Loan Parties for Restoration in the manner provided in Section 6.12(d) or (ii) apply the Net Restoration Awards to the Obligations, in such order and manner as Agent determines, as the case may be without payment of the Prepayment Fee (unless an Event of Default shall then be continuing, in which event the Prepayment Fee shall be due and payable) or any other prepayment premium, fee or penalty (for the avoidance of doubt, it is agreed that the payment of Additional Interest shall not be deemed to be a penalty or premium). For purposes of clarification, the Release Conditions set forth in Section 6.12(d) shall apply to a release of Net Restoration Awards, except as otherwise specified in this Section 6.13(c); provided, however, that references to “Casualty” and “Net Proceeds” in Section 6.12(d) shall be deemed references to “Taking” and “Net Restoration Awards.” (d) Notwithstanding anything to the contrary contained in this Section 6.13, in the event of any conflict between the provisions of this Section 6.13 and the Ground Leases with respect to the payment or application of any Net Restoration Award, the provisions of the Ground Leases shall control.

Appears in 1 contract

Samples: Loan Agreement (Sunstone Hotel Investors, Inc.)

Taking of the Mortgaged Property. (a) In Promptly, and in any case within two (2) Business Days after the occurrence thereof, Borrower shall notify Agent of a any Taking of any portion of the Premises, and promptly and in any case within two (2) Business Days after Borrower receives notice thereof or otherwise obtains knowledge thereof, the commencement of any proceeds proceedings or negotiations that which might result in such a Taking. Within five (5) Business Days after the occurrence of such Taking or Borrower’s receipt of notice or knowledge of such proceedings or negotiations, the Borrower immediately will give notice thereof to Lender generally describing shall provide Agent with a general description of the nature and extent of such Taking or the nature of such proceedings or negotiations and the nature and extent of the Taking which might result therefrom. Lender . (b) Agent shall be entitled hereunder to all awards or compensation payable on account of a Taking. The Borrower hereby irrevocably assigns, transfers and sets over to Lender Agent all rights of the Borrower to any such awards or compensation and irrevocably authorizes and empowers Lender Agent, in the name of the Borrower or otherwise, to collect and receive receipt for any such award or compensation and delegate to Agent the right to file and prosecute any and all claims for any such awards or compensation and to participate in any and all hearings, trials and appeals in connection with a Taking on behalf of Borrower. Agent may participate in such proceedings or negotiations and Borrower will deliver or cause to be delivered to Agent all instruments requested by Agent to permit such participation; provided, however, that Agent shall be under no obligation to question the amount of the award or compensation. Although it is hereby expressly agreed that the same shall not be necessary, and in any event, Borrower shall, upon demand of Agent, make, execute and deliver any and all assignments and other instruments sufficient for the purpose of assigning any such award or compensation to Agent, free and clear of any encumbrances of any kind or nature whatsoever. Agent may be represented by counsel satisfactory to it at the expense of Borrower. Borrower will pay promptly after demand all costs and expenses (including attorneys’ fees and disbursements and any appraiser or other consultant) incurred by Agent in connection with any Taking and seeking and obtaining any award or payment on account thereof. Notwithstanding the foregoing, so long as no Default or Termination Payments Event of Default shall have occurred and shall then be continuing and provided the Borrower promptly files all claims and diligently prosecutes such claim or claimssame, the Borrower shall have the right to prosecute collect and file receive any such claim or claims and the Borrower shall cause any such award or compensation arising from a Taking, and to file and prosecute all claims for such awards and Agent shall not collect or receive such awards or file or prosecute such a claim or participate in the proceedings or negotiations thereof except for Takings with respect to which the award and compensation thereof is greater than $500,000 (the “Condemnation Proceeds Disbursement Threshold”). Notwithstanding the foregoing, or anything else herein, to the contrary, all awards and compensation for temporary Takings may be collected by and shall be paid to Agent and applied in accordance with Section 5.13(d)(iii) hereof (c) Borrower shall use all Net Restoration Awards actually received by Borrower for the Restoration, provided that if any such Net Restoration Award remains after the completion of such Restoration, Borrower shall apply same to the Loan as a prepayment thereof in accordance with Section 2.4(f) hereof promptly after completion of such Restoration. Borrower shall, at its sole cost and expense, promptly commence and diligently and continuously perform to completion the Restoration in a good and workmanlike manner and in compliance with all Legal Requirements and the requirements of the Permitted Encumbrances, the Premises Documents, the Management Agreement and the Franchise Agreement, whether or not Borrower shall have satisfied the Release Conditions in order to cause the Net Restoration Award to be collected made available for such Restoration and promptly whether or not such awards or compensation, if any, on account of the Taking shall be sufficient for such purpose. (d) In the case of any Taking with respect with respect to which the award and compensation thereof is greater than the Condemnation Proceeds Disbursement Threshold, the Net Proceeds shall be held by Agent, if Agent so elects, as a part of the Collateral and shall be applied or dealt with by Agent as follows: (i) If the Release Conditions are satisfied, and the Taking is not a Material Taking, all Net Restoration Awards shall be applied to pay the cost of Restoration, such application to be effected in the same manner as provided in Section 5.12(d) hereof with respect to Net Proceeds and the balance, if any, of such Net Restoration Awards shall, at the option of Agent, be applied as a prepayment of the principal amount of the Loan (without payment of the Prepayment Fee) or be paid over or assigned to Lender; Borrower following completion of the Restoration. (ii) If the Taking is a Material Taking, or one or more of the Release Conditions set forth in subsections (A) through (H) of Section 5.12(d)(i) hereof are not satisfied within ninety (90) days after the occurrence of the Taking, all Net Restoration Awards shall be applied in accordance with Section 5.14 hereof, provided, that, if each of the Borrower Release Conditions shall have been satisfied except the Release Condition set forth in Section 5.12(d)(i)(A) hereof as a result of the occurrence of a Default (as opposed to the occurrence of an Event of Default), Agent shall not agree so apply the Net Proceeds until such time, if any, as an Event of Default shall have occurred. If an Event of Default occurs, all Net Restoration Awards shall also be applied in accordance with Section 5.14 hereof. (iii) In the case of a Taking for temporary use, any Net Restoration Awards shall be deposited in the Lockbox Account and disbursed in accordance with the Cash Management Agreement. Any amounts remaining after completion of the Restoration shall, at Agent’s election, be distributed to Borrower or accept any xxxx or compensation applied as a mandatory prepayment of the Loan (without Lender's prior written consent. Lender may participate in such proceeds or negotiations, and payment of the Borrower will deliver or cause to be delivered to Lender allPrepayment Fee).

Appears in 1 contract

Samples: Loan Agreement (Interstate Hotels & Resorts Inc)

Taking of the Mortgaged Property. (a) In case Borrower hereby irrevocably assigns, transfers and sets over to Agent all rights of a Taking Borrower and Property Owner in and to any such awards or the commencement of any proceeds or negotiations that might result in a Takingcompensation. Subject to Section 7.12(b) hereof, the Borrower immediately will give notice thereof to Lender generally describing the nature and extent of such Taking or the nature of such proceedings or negotiations and the nature and extent of the Taking which might result therefrom. Lender (i) Agent shall be entitled hereunder to all awards or compensation payable on account of a Taking. The Taking and until disbursed such awards and compensation shall constitute additional security for the Obligations, (ii) Borrower hereby irrevocably assigns, transfers and sets over to Lender Agent all rights of the Borrower and Property Owner in and to any such awards or compensation and irrevocably authorizes and empowers Lender Agent, in the name of the Borrower Borrower, Property Owner or otherwise, to collect and receive any such award or compensation and delegate to Agent the right to file and prosecute any and all claims for any such awards or compensation and to participate in any and all hearings, trials and appeals in connection with a Taking on behalf of Borrower and Property Owner and (iii) Agent may participate in such proceedings or negotiations and Borrower and Property Owner will deliver or cause to be delivered to Agent all instruments requested by Agent to permit such participation; provided, however, that Agent shall be under no obligation to question or maximize the amount of the award or compensation or obtain any particular amount of award or compensation. Although it is hereby expressly agreed that the same shall not be necessary, and in any event, Borrower shall, and shall cause Property Owner to, upon demand of Agent, make, execute and deliver any and all assignments and other instruments sufficient for the purpose of assigning any such award or compensation to Agent, free and clear of any encumbrances of any kind or nature whatsoever. Agent may be represented by counsel satisfactory to it, the reasonable expenses of which shall be paid by Borrower. (b) Notwithstanding the foregoingSection 7.12(a) hereof, so long as no Default or Termination Payments Event of Default shall have occurred and shall then be continuing and provided the Borrower or Property Owner promptly files all claims and diligently prosecutes such claim same, Borrower or claims, the Borrower Property Owner shall have the right to collect and receive any award or compensation arising from a Taking, and to file and prosecute all claims for such awards and Agent shall not collect or receive such awards or file or prosecute such a claim or participate in the proceedings or negotiations thereof except for (i) awards or compensation with respect to temporary Takings and (ii) Takings on account of which the award and compensation thereof are reasonably expected to be or is greater than $100,000 (the “Condemnation Proceeds Disbursement Threshold”), and provided that, in any event, Borrower shall not and shall not permit Property Owner to agree to any adjustment or settlement of any such claim payable with respect to a Taking the award and compensation with respect to which are reasonably expected to be greater than the Condemnation Proceeds Disbursement Threshold without Agent’s prior consent. Borrower shall pay promptly after demand all reasonable costs and expenses (including attorneys’ fees and disbursements and any appraiser or claims other consultant) incurred by Agent in connection with any Taking and seeking and obtaining any award or payment on account thereof. Awards and compensation held by Agent, together with any interest earned thereon, shall constitute additional security for the payment of the Obligations (a security interest therein being granted hereby), until disbursed in accordance with this Section 7.13 or Section 7.14 hereof, as the case may be. Notwithstanding the foregoing, or anything else herein, to the contrary, all awards and compensation for temporary Takings may be collected by and shall be paid to Agent and applied in accordance with Section 7.13(d)(iii) hereof. (c) Borrower shall, and cause Property Owner to, use all awards and other compensation actually received by Borrower or Property Owner for Restoration to the extent required pursuant to the definition thereof herein. Borrower shall, or shall cause Property Owner to, at its and Property Owner’s sole cost and expense, promptly commence and diligently and continuously perform to completion the Restoration in a good and workmanlike manner and in compliance with all Legal Requirements and the requirements of the Permitted Encumbrances, whether or not Borrower shall have satisfied the Release Conditions in order to cause the Net Restoration Award to be made available for such Restoration and whether or not such awards or compensation, if any, on account of the Taking shall be sufficient for such purpose. (d) In the case of any Taking with respect to which the award and compensation payable are less than the Condemnation Proceeds Disbursement Threshold, the Net Restoration Award shall be payable directly to Borrower or Property Owner (or if paid to Agent, Agent shall disburse same to Borrower or Property Owner) for Restoration, provided that if any such Net Restoration Award remains after the completion of such Restoration, Borrower shall apply same to the Loan as a prepayment thereof in accordance with Section 2.4(e) hereof promptly after completion of such Restoration. In the case of any Taking with respect to which the award and compensation payable are equal to or compensation to be collected and promptly paid over to Lender; provided, thatgreater than the Condemnation Proceeds Disbursement Threshold, the Borrower Net Restoration Award shall not agree to or accept any xxxx or compensation without Lender's prior written consent. Lender may participate in such proceeds or negotiationsbe held by Agent, if Agent so elects, as a part of the Collateral and shall be applied as follows: (i) If the Release Conditions are satisfied, and the Borrower will deliver or cause Taking is not a Material Taking, all Net Restoration Awards shall be applied to pay the cost of Restoration, such application to be delivered effected in the same manner as provided in Section 7.12(d) hereof with respect to Lender allNet Proceeds and the balance, if any, of such Net Restoration Awards shall be distributed by Agent to Borrower following completion of the Restoration. (ii) If the Taking is a Material Taking, or one or more of the Release Conditions set forth in subsection (ii) through (vii) of Section 7.12(d) hereof are not satisfied within one hundred and twenty (120) days from and after the date of the Taking, all Net Restoration Awards shall be applied in accordance with Section 7.14 hereof. If an Event of Default occurs, all Net Restoration Awards shall also be applied in accordance with Section 7.14 hereof. If a First Tier Default occurs, or one or more of the Release Conditions set forth in subsection (viii) of Section 7.12(d) hereof are not satisfied, Agent shall, with respect to the applicable disbursement, continue to hold the Net Restoration Awards until those conditions are satisfied or, if applicable, such First Tier Default ceases to exist, subject to the other terms of this Section 7.12(e). (iii) In the case of a Taking for temporary use, any Net Restoration Awards shall be deposited with Agent and disbursed in accordance with Section 7.12(g) hereof for so long as such temporary Taking continues.

Appears in 1 contract

Samples: Loan Agreement (Interstate Hotels & Resorts Inc)

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