hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.
Appears in 1 contract
hereof. Borrower will deliver shall not suffer and shall promptly cause to be ----------- paid and discharged any lien or charge whatsoever which may be or become a lien or charge against any of the Properties (subject to Borrower's right to contest Taxes and Other Charges in accordance with this Section 5.1(b)), and shall --------------- promptly pay for all utility services provided to the Properties. Borrower shall furnish to Lender receipts for the payment or other evidence satisfactory to Lender that of the Taxes and the Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be same shall become delinquent if not paid (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 7.3 ----------- hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) no Event of Default has occurred and remains uncured, (ii) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to affecting any of the Mortgage; Properties, (iiiii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; , (iiiiv) neither the no Individual Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled canceled or lost; , and (ivv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; . In addition, if the Taxes or Other Charges are not paid in full when the Borrower commences such contest, then the following shall apply: (vA) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the applicable Individual Property; , and (viB) Borrower shall furnish have furnished such security as may be required in the proceeding, or as may be reasonably requested by LenderLender or sufficient funds are on deposit in the Tax and Insurance Escrow Fund to pay any such Taxes or Other Charges pursuant to Section 7.3, to insure ----------- the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedestablished after Borrower's appeals have been exhausted.
Appears in 1 contract
hereof. Except as hereinabove set forth, no full or partial prepayments of principal shall be allowed. Borrower will deliver acknowledges that it possesses no right to Lender receipts for prepay the Note except as expressly provided herein. For the purposes of this Note, prepayment shall mean any event whereby the debt evidenced by this Note is fully or partially satisfied prior to its Maturity Date in any manner, whether voluntarily or involuntarily (excluding scheduled payments required hereunder or the receipt of insurance or condemnation proceeds) including, without limitation, any payment after Default (as defined below), any payment after the Maturity Date is accelerated, any payment by any holder of a subordinate interest in the Premises (as defined below), any payment by any sale or transfer pursuant to judicial order or trustee's sale under the Deed of Trust or deed in lieu thereof, or any payment by sale or other evidence satisfactory to method under any bankruptcy or insolvency proceedings. Lender that the Taxes and Other Charges have been so paid or are shall not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (provided, however, that Borrower is not required to furnish such receipts for accept any prepayment if it does not include payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof)required premium. If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy Upon acceleration of the receipt evidencing maturity of this Note, the prepayment premium shall be the amount that would be due if a voluntary prepayment were allowed and made at the time of such acceleration. Borrower and Lender agree that if this Note is prepaid for any reason (other than by application of insurance or condemnation proceeds, which application shall not result in payment thereof to Lender, then of a prepayment premium) Lender shall reimburse Borrower, provided receive the applicable prepayment premium as partial compensation for the cost of reinvesting the prepayment proceeds and for the loss of the contracted rate of return on this Note and that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of the applicable prepayment premium is reasonable Borrower agrees that Lender shall not be obligated, as a condition precedent to its receipt of the prepayment premium provided for, to actually reinvest all or any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable part of the amount prepaid in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceedingany Selected Treasury Instrument(s), or as may be reasonably requested by Lender, to insure the payment of in any such Taxes other United States Treasury Instruments or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedobligations.
Appears in 1 contract
Sources: Note Secured by Deed of Trust (United Investors Realty Trust)
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent due and payable no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (paid; provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the PropertyProperties, and shall promptly pay (or cause the Master Tenant and/or the applicable Operator to promptly pay) for all utility services provided to the PropertyProperties. After prior written notice to Lender, Borrower, at its own sole cost and expense, may contest (or cause Mortgage Borrower and Maryland Owner to contest) by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (ia) Borrower no Event of Default has occurred and is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgagecontinuing; (iib) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinancesmaterial Legal Requirements; (iiic) neither the no Collateral, Senior Mezzanine Collateral or Individual Property (nor any part thereof or interest therein therein) will be in imminent danger of being sold, forfeited, terminated, cancelled or lost; (ivd) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (ve) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the applicable Individual Property; and (vif) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, proceeding to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedestablished or any Individual Property (or part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, cancelled or lost or there shall be any danger of the Lien of any Mortgage being subordinated to any such related Lien.
Appears in 1 contract
Sources: Loan Agreement (Hcp, Inc.)
hereof. Borrower will shall deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or or Other Charges would otherwise be delinquent if not paid paid. Borrower shall furnish to Lender receipts for the payment of the Taxes and the Other Charges prior to the date the same shall become delinquent (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that if such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes hereof and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paidreceived receipts from the relevant taxing authority). Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its Borrower’s own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions no Default or Event of any mortgage or deed of trust superior in lien to the MortgageDefault has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; (vi) Borrower shall have set aside adequate reserves for the payment of the Taxes, together with all interest and penalties thereon, unless Borrower has paid all of the Taxes under protest; and (vivii) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedestablished or the Property (or part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, cancelled or lost or there shall be any danger of the Lien of the Security Instrument being primed by any related Lien.
Appears in 1 contract
Sources: Loan Agreement (Wheeler Real Estate Investment Trust, Inc.)
hereof. The Borrower and the Parent hereby waive the right to contest the jurisdiction and venue of the courts located in the State of New York on the ground of inconvenience or otherwise. The provisions of this Section 10.10 shall not limit or otherwise affect the right of the Borrower or the Parent to institute and conduct action in any other appropriate manner, jurisdiction or court. Neither the Borrower nor the Parent nor any other Person liable for the Indebtedness to the Agent Bank or the Lenders referred to herein, nor any assignee, successor, heir or personal representative of the Borrower or the Parent or any such other Person shall seek a jury trial in any proceeding based upon or arising out of this Agreement, any Note, any other document executed in connection herewith, any collateral for the payment hereof or the dealings or the relationship between or among such Persons, or any of them. Neither the Borrower nor the Parent nor any such Person will deliver seek to consolidate any such action with any action in which a jury trial cannot be or has not been waived. Except as prohibited by law, each party hereto waives any rights it may have to claim or recover in any litigation referred to in this Section 10.10 any special, exemplary, punitive or consequential damages or any damages other than, or in addition to, direct damages. Each party hereto (a) certifies that no representative, agent or attorney of the Agent Bank or a Lender receipts for payment has represented, expressly or other evidence satisfactory to Lender otherwise, that the Taxes and Other Charges have been so paid Agent Bank or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges a Lender would otherwise be delinquent if not paid (providednot, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event of litigation, seek to enforce the foregoing waivers and (b) acknowledges that such Taxes it has been induced to enter into this Agreement or any other document executed in connection herewith, as applicable, by, among other things, the mutual waivers and certifications herein. The provisions of this Section 10.10 have been paid fully disclosed by Lender pursuant the parties hereto and the provisions hereof shall be subject to Section 7.2 hereof)no exceptions. If Borrower pays No party has in any way agreed with or causes represented to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided any other party that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior this Section 10.10 will not be fully enforced in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedinstances.
Appears in 1 contract
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (paid; provided, however, that (i) Borrower is not required to furnish such receipts for payment of Taxes and Other Charges in the event that such Taxes and Other Charges have been paid by Lender pursuant to Section 7.2 9.2 hereof). If Borrower pays , and (ii) if the tenant under a Lease is required to pay such Taxes or causes to be paid all Taxes and Other Charges directly to the applicable Governmental Authority and provides a copy Borrower timely requests and diligently pursues evidence of such payment, and further provided that no enforcement action has been commenced by the receipt evidencing the payment thereof applicable Governmental Authority resulting from any tenant’s failure to pay Taxes or Other Charges, then Borrower shall have an additional thirty (30) day period to provide such evidence to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the PropertyProperty or any Individual Property (other than Permitted Encumbrances), and shall promptly pay for or cause to be paid all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Lien, Taxes or Other ChargesCharges with respect to any Individual Property, provided that the following conditions are satisfied: (ia) no Event of Default has occurred and remains uncured; (b) Borrower is permitted to do so contest under the provisions of any mortgage document or deed of trust superior in lien to the Mortgageagreement affecting such Individual Property; (iic) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws Laws and ordinances; (iiid) neither the such Individual Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (ive) Borrower shall promptly upon final determination thereof pay the amount of any such Lien, Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (vf) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Propertyintentionally omitted; and (vig) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Lien, Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit security or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedestablished or the Individual Property (or interest therein) shall be in danger of being sold, forfeited, terminated, cancelled or lost or there shall be any danger of the Lien of the Security Instrument for such Individual Property or the other Loan Documents being primed by any related Lien. Notwithstanding the foregoing, to the extent any Lease with a tenant remains in effect and such tenant remains liable for the obligations under its Lease, such tenant shall have the right to exercise any contest rights explicitly set forth in such Lease in accordance with the express terms thereof and, to the extent such rights conflict or are inconsistent with the provisions of this Section 5.2, the provisions set forth in such Lease shall govern and control.
Appears in 1 contract
Sources: Loan Agreement (Cole Real Estate Income Strategy (Daily Nav), Inc.)
hereof. Borrower will deliver to Lender receipts for payment The Acquired Fund does not have outstanding any options, warrants or other evidence satisfactory rights to Lender that subscribe for or purchase any Acquired Fund Shares, nor is there outstanding any security convertible into any Acquired Fund Shares;
(j) At the Taxes Closing Date, the Acquired Fund will have good and Other Charges marketable title to the Acquired Assets, and full right, power and authority to sell, assign, transfer and deliver the Acquired Assets to the Acquiring Fund, and, upon delivery and payment for the Acquired Assets, the Acquiring Fund will acquire good and marketable title thereto, subject to no restrictions on the full transfer thereof, except such restrictions as might arise under the Securities Act;
(k) The AmSouth Trust has the trust power and authority to enter into and perform its obligations under this Agreement. The execution, delivery and performance of this Agreement have been so paid or are not then delinquent no later than ten (10) days prior duly authorized by all necessary action on the part of the AmSouth Trust's Board of Trustees, and, subject to the approval of the Acquired Fund's shareholders, assuming due authorization, execution and delivery by the Acquiring Fund, this Agreement will constitute a valid and binding obligation of the Acquired Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights and to general equity principles;
(l) The information to be furnished by the Acquired Fund to the Acquiring Fund for use in applications for orders, registration statements, proxy materials and other documents which may be necessary in connection with the transactions contemplated hereby and any information necessary to compute the total return of the Acquired Fund shall be accurate and complete and shall comply in all material respects with federal securities and other laws and regulations applicable thereto;
(m) The information included in the proxy statement (the "Proxy Statement") forming part of the Acquiring Fund's Registration Statement on Form N-14 filed in connection with this Agreement (the "Registration Statement") that has been furnished in writing by the Acquired Fund to the Acquiring Fund for inclusion in the Registration Statement, on the effective date of that Registration Statement and on the Closing Date, will conform in all material respects to the applicable requirements of the Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the Investment Company Act and the rules and regulations of the Commission thereunder and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(n) Upon the effectiveness of the Registration Statement, no consent, approval, authorization or order of any court or governmental authority is required for the consummation by the AmSouth Trust or the Acquired Fund of the transactions contemplated by this Agreement;
(o) All of the issued and outstanding Acquired Fund Shares have been offered for sale and sold in compliance in all material respects with all applicable federal and state securities laws, except as may have been previously disclosed in writing to the Acquiring Fund;
(p) The prospectus and statement of additional information of the Acquired Fund, and any amendments or supplements thereto, furnished to the Acquiring Fund, did not as of their dates or the dates of their distribution to the public contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which such statements were made, not materially misleading;
(q) The Acquired Fund currently complies in all material respects with, and since its organization has complied in all material respects with, the Taxes and/or Other Charges requirements of, and the rules and regulations under, the Investment Company Act, the Securities Act, the Exchange Act, state "Blue Sky" laws and all other applicable federal and state laws or regulations. The Acquired Fund currently complies in all material respects with, and since its organization has complied in all material respects with, all investment objectives, policies, guidelines and restrictions and any compliance procedures established by the AmSouth Trust with respect to the Acquired Fund. All advertising and sales material used by the Acquired Fund complies in all material respects with and has complied in all material respects with the applicable requirements of the Securities Act, the Investment Company Act, the rules and regulations of the Commission, and, to the extent applicable, the Conduct Rules of the National Association of Securities Dealers, Inc. (the "NASD") and any applicable state regulatory authority. All registration statements, prospectuses, reports, proxy materials or other filings required to be made or filed with the Commission, the NASD or any state securities authorities by the Acquired Fund have been duly filed and have been approved or declared effective, if such approval or declaration of effectiveness is required by law. Such registration statements, prospectuses, reports, proxy materials and other filings under the Securities Act, the Exchange Act and the Investment Company Act (i) are or were in compliance in all material respects with the requirements of all applicable statutes and the rules and regulations thereunder and (ii) do not or did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not false or misleading;
(r) The Acquired Fund has previously provided to the Acquiring Fund (and at the Closing will provide an update through the Closing Date of such information) data which supports a calculation of the Acquired Fund's total return for all periods since the organization of the Acquired Fund. Such data has been prepared in accordance in all material respects with the requirements of the Investment Company Act and the regulations thereunder and the rules of the NASD;
(s) Neither the Acquired Fund nor, to the knowledge of the Acquired Fund, any "affiliated person" of the Acquired Fund has been convicted of any felony or misdemeanor, described in Section 9(a)(1) of the Investment Company Act, nor, to the knowledge of the Acquired Fund, has any affiliated person of the Acquired Fund been the subject, or presently is the subject, of any proceeding or investigation with respect to any disqualification that would otherwise be delinquent if a basis for denial, suspension or revocation of registration as an investment adviser under Section 203(e) of the Investment Advisers Act of 1940, as amended (the "Investment Advisers Act"), or Rule 206(4)-4(b) thereunder or of a broker-dealer under Section 15 of the Exchange Act, or for disqualification as an investment adviser, employee, officer or director of an investment company under Section 9 of the Investment Company Act; and
(t) The tax representation certificate to be delivered by AmSouth Trust on behalf of the Acquired Fund to the Acquiring Trust and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP at the Closing pursuant to Paragraph 7.4 (the "Acquired Fund Tax Representation Certificate") will not paid on the Closing Date contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading.
4.2 Except as set forth on a disclosure schedule previously provided by the Acquiring Trust to the AmSouth Trust, the Acquiring Trust, on behalf of the Acquiring Fund, represents, warrants and covenants to the Acquired Fund, which representations, warranties and covenants will be true and correct on the date hereof and on the Closing Date as though made on and as of the Closing Date, as follows:
(provideda) The Acquiring Fund is a series of the Acquiring Trust. The Acquiring Fund has not commenced operations and will not do so until the Closing. The Acquiring Trust is a statutory trust duly organized, however, that Borrower validly existing and in good standing under the laws of the State of Delaware. The Acquiring Trust has the power to own all of its properties and assets and to perform the obligations under this Agreement. The Acquiring Fund is not required to furnish such receipts for payment qualify to do business in any jurisdiction in which it is not so qualified or where failure to qualify would subject it to any material liability or disability. Each of Taxes the Acquiring Trust and the Acquiring Fund has all necessary federal, state and local authorizations to own all of its properties and assets and to carry on its business as now being conducted;
(b) The Acquiring Trust is a registered investment company classified as a management company of the open-end type, and its registration with the Commission as an investment company under the Investment Company Act is in full force and effect;
(c) The Acquiring Fund's registration statement on Form N-1A that will be in effect on the Closing Date, and the prospectus and statement of additional information of the Acquiring Fund included therein, will conform in all material respects with the applicable requirements of the Securities Act and the Investment Company Act and the rules and regulations of the Commission thereunder, and did not as of the effective date thereof and will not as of the Closing Date contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(d) The Registration Statement, the Proxy Statement and statement of additional information with respect to the Acquiring Fund and any amendments or supplements thereto in effect on or prior to the Closing Date included in the event that such Taxes have been paid Registration Statement (other than written information furnished by Lender pursuant the Acquired Fund for inclusion therein, as covered by the Acquired Fund's warranty in Paragraph 4.1(m) hereof) will conform in all material respects to Section 7.2 the applicable requirements of the Securities Act and the Investment Company Act and the rules and regulations of the Commission thereunder. Neither the Registration Statement nor the Proxy Statement (other than written information furnished by the Acquired Fund for inclusion therein, as covered by the Acquired Fund's warranty in Paragraph 4.1(m) hereof). If Borrower pays ) includes or causes will include any untrue statement of a material fact or omits to state any material fact required to be paid all Taxes and Other Charges and provides a copy stated therein or necessary to make the statements therein, in light of the receipt evidencing circumstances under which they were made, not misleading;
(e) The Acquiring Trust is not in violation of, and the payment thereof execution and delivery of this Agreement and performance of its obligations under this Agreement will not result in a violation of, any provisions of the Declaration of Trust or by-laws of the Acquiring Trust or any material agreement, indenture, instrument, contract, lease or other undertaking with respect to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Acquiring Fund and provided that to which the Taxes are being paid pursuant to Section 7.2. Upon written request Acquiring Trust is a party or by which the Acquiring Fund or any of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged its assets is bound;
(f) No litigation or administrative proceeding or investigation of or before any Lien court or charge whatsoever which may be governmental body is currently pending or become a Lien or charge threatened against the Property, and shall promptly pay Acquiring Fund or any of the Acquiring Fund's properties or assets. The Acquiring Fund knows of no facts which might form the basis for all utility services provided the institution of such proceedings. Neither the Acquiring Trust nor the Acquiring Fund is a party to the Property. After prior written notice or subject to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage order, decree or deed judgment of trust superior any court or governmental body which materially adversely affects the Acquiring Fund's business or its ability to consummate the transactions contemplated herein;
(g) The Acquiring Fund has no actual or potential liability for any Tax obligation of any taxpayer. The Acquiring Fund is not and has never been a member of a group of corporations with which it has filed (or been required to file) consolidated, combined or unitary Tax Returns. The Acquiring Fund is not a party to any Tax allocation, sharing, or indemnification agreement;
(h) The Acquiring Fund will not have taken or agreed to take any action, and will not be aware of any agreement, plan or other circumstance, that is inconsistent with the representations set forth in lien the Acquiring Fund Tax Representation Certificate to be delivered pursuant to paragraph 6.3;
(i) The authorized capital of the Acquiring Fund consists of an unlimited number of shares of beneficial interest, no par value per share. As of the Closing Date, the Acquiring Fund will be authorized to issue an unlimited number of shares of beneficial interest, no par value per share. The Acquiring Fund Shares to be issued and delivered to the Mortgage; (ii) such proceeding Acquired Fund for the account of the Acquired Fund Shareholders pursuant to the terms of this Agreement will have been duly authorized on the Closing Date and, when so issued and delivered, will be legally issued and outstanding, fully paid and non-assessable. The Acquiring Fund does not have outstanding any options, warrants or other rights to subscribe for or purchase any Acquiring Fund shares, nor is there outstanding any security convertible into any Acquiring Fund shares, nor will the Acquiring Fund have any issued or outstanding shares on or before the Closing Date other than those issued to the Acquiring Fund Adviser or one of its affiliates, which shares shall be permitted redeemed, for an amount equal to the price paid therefor, at or before the Closing;
(j) The Acquiring Trust has the trust power and authority to enter into and perform its obligations under this Agreement. The execution, delivery and be conducted performance of this Agreement have been duly authorized by all necessary action on the part of the Acquiring Trust's Board of Trustees, and, assuming due authorization, execution and delivery by the Acquired Fund, this Agreement will constitute a valid and binding obligation of the Acquiring Fund, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights and to general equity principles;
(k) The information to be furnished in writing by the provisions Acquiring Fund or the Acquiring Fund Adviser for use in applications for orders, registration statements, proxy materials and other documents which may be necessary in connection with the transactions contemplated hereby shall be accurate and complete in all material respects and shall comply in all material respects with federal securities and other laws and regulations applicable thereto or the requirements of any other instrument to form for which Borrower its use is subject intended, and shall not constitute contain any untrue statement of a default thereunder material fact or omit to state a material fact necessary to make the information provided not misleading;
(l) No consent, approval, authorization or order of or filing with any court or governmental authority is required for the execution of this Agreement or the consummation of the transactions contemplated by the Agreement by the Acquiring Fund, except for the registration of the Acquiring Fund Shares under the Securities Act and such proceeding shall be conducted in accordance with all applicable statutesthe Investment Company Act;
(m) Neither the Acquiring Fund nor, laws and ordinances; (iii) neither to the Property nor knowledge of the Acquiring Fund, any part thereof or interest therein will be in danger "affiliated person" of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount Acquiring Fund has been convicted of any such Taxes felony or Other Chargesmisdemeanor, together with all costsdescribed in Section 9(a)(1) of the Investment Company Act, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend nor, to the collection knowledge of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in Acquiring Fund, has any affiliated person of the proceedingAcquiring Fund been the subject, or as may be reasonably requested by Lenderpresently is the subject, to insure the payment of any such Taxes proceeding or Other Chargesinvestigation with respect to any disqualification that would be a basis for denial, together with all interest and penalties thereon. Lender may pay over any such cash deposit suspension or part thereof held revocation of registration as an investment adviser under Section 203(e) of the Investment Advisers Act or Rule 206(4)-4(b) thereunder or of a broker-dealer under Section 15 of the Exchange Act, or for disqualification as an investment adviser, employee, officer or director of an investment company under Section 9 of the Investment Company Act; and
(n) The tax representation certificate to be delivered by Lender the Acquiring Trust on behalf of the Acquiring Fund to the claimant entitled thereto AmSouth Trust and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.Closing pursuant to Section 6.3 (t
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Pioneer Series Trust IV)
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not permit or suffer and shall promptly cause to be paid and discharged discharge any Lien or charge whatsoever which may be or become a Lien lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, BorrowerBorrower or, if the Telcordia Lease or an Acceptable Replacement Lease is in full force and effect, Telcordia or an Acceptable Replacement Tenant, as applicable, at its own expense, may contest by appropriate legal proceeding, promptly initiated within a reasonable period of time and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Chargesof the Taxes, provided that (i) Borrower is permitted to do so under the provisions no Event of any mortgage or deed of trust superior in lien to the MortgageDefault has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled canceled or lostlost as a result of such contest or underlying lien; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) or Borrower or Telcordia or an Acceptable Replacement Tenant shall furnish such have furnished the security as may be required in the proceeding, or as may be reasonably requested by Lender, Lender to insure the payment of any such Taxes or Other Chargescontested Taxes, together with all interest and penalties thereon, taking into consideration any Tax Funds available for payment of Taxes. Lender may pay over any such cash deposit or part thereof other security held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement Property or any part thereof or interest therein is in danger of such claimant is establishedbeing sold, forfeited, terminated cancelled or lost.
Appears in 1 contract
Sources: Loan Agreement (Corporate Property Associates 16 Global Inc)
hereof. Borrower will deliver shall furnish to Lender receipts for the payment or other evidence satisfactory to Lender that of the Taxes and the Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (same shall become delinquent; provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 6.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not permit or suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own sole cost and expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, ; provided that (ia) Borrower is permitted to do so under the provisions no monetary or material non-monetary Default nor any Event of any mortgage or deed of trust superior in lien to the MortgageDefault has occurred and remains outstanding; (iib) intentionally omitted; (c) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower or the Property is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinancesLegal Requirements; (iiid) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled canceled or lost; (ive) Borrower shall shall, subject to any stay pending an appeal, if any, promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (vf) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vig) Borrower shall furnish such cash or other security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure ensure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon; and (h) such contest by Borrower is not in violation of the Leases. Lender may pay over over, assign or transfer any such cash deposit security or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedestablished or the Property (or any part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, canceled or lost or there shall be any danger of the Lien of the Security Instrument being primed by any related Lien.
Appears in 1 contract
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (paid; provided, however, that (i) Borrower is not required to furnish such receipts for payment of Taxes and Other Charges in the event that such Taxes and Other Charges have been paid by Lender pursuant to Section 7.2 9.2 hereof). If Borrower pays , and (ii) if the tenant under a Lease is required to pay such Taxes or causes to be paid all Taxes and Other Charges directly to the applicable Governmental Authority and provides a copy Borrower timely requests and diligently pursues evidence of such payment, and further provided that no enforcement action has been commenced by the receipt evidencing the payment thereof applicable Governmental Authority resulting from any tenant’s failure to pay Taxes or Other Charges, then Borrower shall have an additional thirty (30) day period to provide such evidence to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the PropertyProperty (other than Permitted Encumbrances), and shall promptly pay for or cause to be paid all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Lien, Taxes or Other ChargesCharges with respect to the Property, provided that the following conditions are satisfied: (ia) no Event of Default has occurred and remains uncured; (b) Borrower is permitted to do so contest under the provisions of any mortgage document or deed of trust superior in lien to agreement affecting the MortgageProperty; (iic) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.in
Appears in 1 contract
Sources: Loan Agreement (Cole Credit Property Trust Iv, Inc.)
hereof. In making any disbursement from the Tax and Insurance Reserve Account, Lender may do so according to any ▇▇▇▇, statement or estimate procured from the appropriate public office or tax lien service (with respect to Taxes) or insurer or agent (with respect to Insurance Premiums), without inquiry into the accuracy of such ▇▇▇▇, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof. If the amount of the Tax and Insurance Reserve Funds shall exceed the amounts due for Taxes and Insurance Premiums pursuant to Section 4.4 and Section 7.1 hereof, Lender shall, in its sole discretion, return any excess to Borrower or credit such excess against future payments to be made to the Tax and Insurance Reserve Account. Upon the Debt being paid in full or upon a release of the lien of the Security Instrument in connection with a Defeasance Event, any amount remaining in the Tax and Insurance Reserve Account shall be returned to Borrower. If at any time Lender reasonably determines that the Tax and Insurance Reserve Funds are not or will deliver not be sufficient to pay Taxes and Insurance Premiums by the dates set forth in (a) and (b) above, Lender shall notify Borrower of such determination and Borrower shall pay to Lender receipts for payment or other evidence satisfactory any amount necessary to Lender that make up the Taxes and Other Charges have been so paid or are not then delinquent no later than deficiency within ten (10) days prior after notice from Lender to Borrower requesting payment thereof. Notwithstanding anything to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (providedcontrary set forth in this Section 8.6, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in not require Borrower to pay any initial deposit or any monthly deposits to the Tax and Insurance Escrow Fund Reserve Account for Insurance Premiums provided (i) no Event of Default then exists, (ii) Borrower is not in default under this Agreement in any of its obligations to timely pay Insurance Premiums, and provided that (iii) Borrower delivers to Lender either a certificate or certified copy of the Taxes are being paid pursuant to Section 7.2renewal policy evidencing the renewal of any expiring insurance policies within the time periods required under this Agreement. Upon written request the failure of Borrower, if Lender has paid such Taxes pursuant any of the requirements set forth in the preceding sentence to Section 7.2 hereofbe satisfied as determined by Lender, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrowermay, at its own expensesole option exercised in its sole and absolute discretion, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) require Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien commence paying monthly deposits to the Mortgage; (ii) such proceeding shall be permitted under Tax and be conducted Insurance Reserve on account of Insurance Premiums set forth in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedthis Section 8.6.
Appears in 1 contract
Sources: Loan Agreement (Acadia Realty Trust)
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (providedPROVIDED, howeverHOWEVER, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be 37 reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.
Appears in 1 contract
Sources: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (providedPROVIDED, howeverHOWEVER, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of 36 being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.
Appears in 1 contract
Sources: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
hereof. Borrower will deliver If any Indemnitee actually realizes a tax benefit by reason of the payment of any Tax paid or indemnified against by the Lessee, such Indemnitee shall promptly pay to Lender receipts for the Lessee, to the extent such tax benefit was not previously taken into account in computing such payment or indemnification, but not before the Lessee shall have made all payments then due to such Indemnitee under this Agreement, the Tax Indemnity Agreement and any other evidence satisfactory Operative Agreement, an amount equal to Lender the lesser of (x) the sum of such tax benefit plus any other tax benefit actually realized by such Indemnitee that the Taxes and Other Charges would not have been so paid or are not then delinquent no later than ten realized but for such payment made by such Indemnitee pursuant to this sentence and (10y) days prior the amount of such payments made pursuant to Section 8.01 hereof and this Section 8.02 by the Lessee to such Indemnitee with respect to the date on which Tax that gave rise to such Tax benefits plus the Taxes and/or Other Charges would otherwise amount of any other payments by the Lessee to such Indemnitee theretofore required to be delinquent made under Section 8.01 hereof and this Section 8.02 (and the excess, if not paid any, of the amount described in clause (x) above over the amount described in clause (y) above shall be carried forward and applied to reduce pro tanto any subsequent obligations of the Lessee to make payments to such Indemnitee pursuant to Section 8.01 hereof); provided, however, that Borrower is notwithstanding the foregoing portions of this sentence, such Indemnitee shall not required be obligated to furnish make any payment to the Lessee pursuant to this sentence as long as an Event of Default shall have occurred and be continuing under the Lease. The Lessee shall reimburse such receipts Indemnitee on an After-Tax Basis for any payment of Taxes a tax benefit pursuant to the preceding sentence (or a tax benefit otherwise taken into account in calculating the event Lessee's indemnity obligation hereunder) to the extent that such Taxes tax benefit is subsequently disallowed or reduced (including the expiration of any tax credit carryovers or carrybacks of such Indemnitee that would not otherwise have been paid by Lender pursuant expired) without regard to Section 7.2 8.01(b) hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.
Appears in 1 contract
hereof. Borrower will deliver shall furnish to Lender receipts for the payment or other evidence satisfactory to Lender that of the Taxes and the Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (same shall become delinquent; provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 6.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not permit or suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided subject to any rights of Borrower to contest any such Liens in accordance with the Propertyterms of the Loan Documents. After Notwithstanding the prior written sentence, after prior notice to Lender, Borrower, at its own sole cost and expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, ; provided that (ia) no Default or Event of Default has occurred and remains outstanding; (b) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the MortgageSecurity Instrument; (iic) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower or the Property is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinancesLegal Requirements; (iiid) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled canceled or lost; (ive) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (vf) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vig) Borrower shall furnish such cash or other security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure ensure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon; and (h) such contest by Borrower is not in violation of the Leases. Lender may pay over over, assign or transfer any such cash deposit security or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedestablished or the Property (or any part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, canceled or lost or there shall be any danger of the Lien of the Security Instrument being primed by any related Lien.
Appears in 1 contract
Sources: Loan Agreement (KBS Strategic Opportunity REIT, Inc.)
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Provided no Event of Default shall then exist, if Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the PropertyProperties, and shall promptly pay for all utility services provided to the PropertyProperties. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the applicable Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the no Individual Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the applicable Individual Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established, or any Individual Property (or part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, cancelled or lost, or there shall be any danger of the Lien of any Mortgage being primed by any other Lien, in each case, as determined by Lender in its reasonable discretion.
Appears in 1 contract
Sources: Loan Agreement (Inland American Real Estate Trust, Inc.)
hereof. Borrower will shall deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid paid. Borrower shall furnish to Lender receipts for the payment of the Taxes and the Other Charges prior to the date the same shall become delinquent (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that if such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes hereof and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paidreceived receipts from the relevant taxing authority). Borrower shall not suffer and shall promptly cause to be paid and discharged or bonded any Lien or charge whatsoever which may be or become a Lien or charge against the any Individual Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its Borrower’s own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions no Default or Event of any mortgage or deed of trust superior in lien to the MortgageDefault has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the applicable Individual Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the applicable Individual Property; (vi) Borrower shall have set aside adequate reserves for the payment of the Taxes, together with all interest and penalties thereon, unless Borrower has paid all of the Taxes under protest; and (vivii) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedestablished or the applicable Individual Property (or part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, cancelled or lost or there shall be any danger of the Lien of the Security Instrument being primed by any related Lien.
Appears in 1 contract
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (providedPROVIDED, howeverHOWEVER, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be he paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.
Appears in 1 contract
Sources: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
hereof. Borrower will shall deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or or Other Charges would otherwise be delinquent if not paid (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in and Other Charges if such Taxes and Other Charges have been paid by Lender pursuant to Section 7.2 hereof). Borrower shall furnish to Lender receipts for the event that payment of the Taxes and Other Charges prior to the date the same shall become delinquent (provided, however, Borrower is not required to furnish such receipts for payment of Taxes if such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the any Individual Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its Borrower’s own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions no Event of any mortgage or deed of trust superior in lien to the MortgageDefault has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the applicable Individual Property nor any part thereof or interest therein will be in imminent danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the applicable Individual Property; and (vi) Borrower shall furnish such have set aside adequate reserves for the payment of the Taxes, together with all interest and penalties thereon, unless Borrower has paid the contested Taxes under protest; and (vii) Borrower shall have furnished the security as may be is required in the proceeding, or, if Borrower shall have not previously paid all of the contested Taxes under protest or furnished the security required pursuant to clause (vii)(A), as may be reasonably requested by Lender, Lender to insure the payment of any such Taxes or Other Chargescontested Taxes, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedestablished or the applicable Individual Property (or part thereof or interest therein) shall be in imminent danger of being sold, forfeited, terminated, cancelled or lost or there shall be any imminent danger of the Lien of the Security Instrument being primed by any related Lien.
Appears in 1 contract
hereof. Borrower will deliver The Guarantee shall be executed on behalf of the Guarantor by its chairman, a vice chairman, its president, or any vice president and by any other vice president, its treasurer, any assistant treasurer, its corporate secretary or any assistant corporate secretary under its corporate seal. The signatures of any or all of these officers on the Guarantees may be manual or by facsimile and may be imprinted or otherwise reproduced on the Guaranteed Security. The seal of the Guarantor may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Guaranteed Securities. Guarantees bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Guarantor shall bind the Guarantor notwithstanding that such individuals or any of them have ceased to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days hold such offices prior to the date authentication and delivery of the Guaranteed Securities on which such Guarantees were endorsed or did not hold such offices at the Taxes and/or Other Charges would otherwise date of such Guaranteed Securities. The Guarantor hereby agrees that the Guarantee set forth in Section 15.01 hereof shall remain in full force and effect and shall apply to each Guaranteed Security executed, authenticated, issued and delivered under this Indenture, whether or not a notation of the Guarantee is endorsed on such Guaranteed Security. The execution and delivery by the Company and the Guarantor of the First Indenture Supplement to the Trustee shall constitute due delivery of the Guarantee set forth herein on behalf of the Guarantor with respect to all outstanding Guaranteed Securities. However, the Guarantee shall not be delinquent if not paid (provided, however, that Borrower is not required valid or become obligatory for any purpose with respect to furnish any specific Guaranteed Security unless the Certificate of Authentication on such receipts Guaranteed Security provided for payment in Section 2.05 of Taxes in the event that such Taxes this Indenture shall have been paid signed by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedTrustee.
Appears in 1 contract
Sources: Indenture Supplement (Aetna Inc)
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (paid; provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the PropertyProperties other than Permitted Encumbrances, and shall promptly pay or cause to be paid for all utility services provided to the PropertyProperties. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (ia) Borrower is permitted to do so under the provisions no Default or Event of any mortgage or deed of trust superior in lien to the MortgageDefault has occurred and remains uncured; (iib) such proceeding shall be permitted under and be conducted in accordance with the provisions of any applicable material other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinancesLegal Requirements; (iiic) neither the no Individual Property nor any part thereof or interest therein will be in imminent danger of being sold, forfeited, terminated, cancelled or lost; (ivd) Borrower shall promptly upon final receipt of a final, non-appealable determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (ve) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the applicable Individual Property; and (vif) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender (or Servicer on its behalf) may pay over any such cash deposit or part thereof held by Lender (or Servicer on its behalf) to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedestablished or any Individual Property (or part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, cancelled or lost or there shall be any danger of the Lien of any Mortgage being primed by any related Lien.
Appears in 1 contract
Sources: Loan Agreement
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (providedPROVIDED, howeverHOWEVER, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly 37 initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.
Appears in 1 contract
Sources: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
hereof. Borrower will deliver shall furnish to Lender receipts for the payment or other evidence satisfactory to Lender that of the Taxes and the Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges same would otherwise be delinquent if not paid (become delinquent; provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 3.1 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not permit or suffer and shall promptly cause to be paid and discharged discharge any Lien or charge whatsoever which may be or become a Lien lien or charge against the Property, and shall promptly pay for all utility services provided to the Propertyexcept Permitted Encumbrances. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions no Event of any mortgage or deed of trust superior in lien to the MortgageDefault has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled canceled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) to the extent such contested Taxes or Other Charges have not been paid (under protest or otherwise) or to the extent security is not required to be paid or posted in connection with the legal proceeding, Borrower shall furnish such deposit with Lender cash, or other security as may be required in the proceeding, or as may be reasonably requested approved by Lender, in an amount equal to 125% of the contested amount, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof other security held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.
Appears in 1 contract
Sources: Loan Agreement (Inland Real Estate Income Trust, Inc.)
hereof. Borrower will deliver shall furnish, or shall cause to furnish, to Lender receipts for the payment or other evidence satisfactory to Lender that of the Taxes and the Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (same shall become delinquent; provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 6.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not permit or suffer and shall promptly cause to be paid and discharged discharge any Lien or charge whatsoever which may be or become a Lien lien or charge against the PropertyProperty (except Permitted Encumbrances), and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions no Default or Event of any mortgage or deed of trust superior in lien to the MortgageDefault has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the any Individual Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled canceled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the applicable Individual Property; and (vi) Borrower shall furnish such deposit with Lender cash, or other security as may be required in the proceeding, or as may be reasonably requested approved by Lender, in an amount equal to one hundred fifteen percent (115%) of the contested amount, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof other security held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.
Appears in 1 contract
hereof. In making any disbursement from the Tax and Insurance Reserve Account, Lender may do so according to any ▇▇▇▇, statement or estimate procured from the appropriate public office or tax lien service (with respect to Taxes) or insurer or agent (with respect to Insurance Premiums), without inquiry into the accuracy of such ▇▇▇▇, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof. If the amount of the Tax and Insurance Reserve Funds shall exceed the amounts due for Taxes and Insurance Premiums pursuant to Section 5.4 and Section 8.1 hereof, Lender shall, in its sole discretion, return any excess to Borrower or credit such excess against future payments to be made to the Tax and Insurance Reserve Account. In allocating any such excess, Lender may deal with the person shown on Lender's records as being the owner of the Property. Any amount remaining in the Tax and Insurance Reserve Account after the Debt has been paid in full shall be returned to Borrower or the person shown on Lender's records as being the owner of the Property and no other party shall have any right or claim thereto. If at any time Lender reasonably determines that the Tax and Insurance Reserve Funds are not or will deliver not be sufficient to pay Taxes and Insurance Premiums by the dates set forth in (a) and (b) above, Lender shall notify Borrower of such determination and Borrower shall pay to Lender receipts for payment or other evidence satisfactory any amount necessary to Lender that make up the Taxes and Other Charges have been so paid or are not then delinquent no later than deficiency within ten (10) days prior after notice from Lender to Borrower requesting payment thereof. Notwithstanding the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid foregoing, so long as (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (ix) Borrower is permitted to do so maintaining all or a portion of the insurance required under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted Section 8.1 through a blanket insurance policy in accordance with the provisions of any other instrument to which Borrower is subject terms and shall conditions hereof, including, but not constitute a default thereunder limited to, Section 8.1(c) hereof and such proceeding shall be conducted in accordance with all applicable statutesblanket policy is acceptable to Lender, laws (y) no Event of Default exists and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (ivz) Borrower shall promptly upon final determination thereof pay provides Lender with evidence in form and substance satisfactory to Lender of the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.annual
Appears in 1 contract
Sources: Loan Agreement (Sun Communities Inc)
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes All repairs and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior replacements made by Tenant shall be at least equal in quality and class to the date on which original work, and Tenant shall use only new building supplies or materials. With respect to any act, operation, omission, or condition that may be out of compliance with, in violation of, or otherwise giving rise to liability or potential liability under any Environmental Law, Tenant shall, and shall cause its Subtenants to, implement all measures necessary or required to eliminate such act, operation, omission or condition as a source of liability or potential liability. Tenant shall keep and maintain all portions of the Taxes and/or Other Charges would otherwise Demised Premises adjoining the same in a clean and orderly condition and shall keep all sidewalks and parking areas part of or adjoining the Demised Premises free of accumulations of dirt, rubbish, snow and ice. All improvements and alterations and all equipment and fixtures made or installed by the Tenant (excluding Tenant's movable fixtures and trade equipment) shall immediately upon completion or installation thereof be delinquent if not paid and become the property of Landlord without payment therefor by Landlord, and shall be surrendered to Landlord upon the expiration of this Lease. Notwithstanding the immediately preceding sentence, Tenant shall have the right from time to time or at the end of the Term to remove any of Tenant's trade fixtures, provided Tenant repairs any damage to the Demised Premises resulting therefrom. Tenant shall at its own expense procure, maintain in effect, and comply with all conditions of any and all permits, licenses, and other governmental and regulatory approvals required for Tenant's use of the Premises, including, without limitation, discharge of (appropriately treated) materials or wastes into or through any storm drains or sewers serving the Demised Premises. Except as discharged into the storm drains or sewer in strict accordance and conformity with all applicable Environmental Laws, Tenant shall cause any and all Hazardous Material (as hereinafter defined) removed from the Demised Premises to be removed and transported solely by duly licensed haulers to duly licensed facilities for final disposal of such materials and wastes. Upon expiration or earlier termination of the term of the Lease, Tenant shall cause all Hazardous Materials to be removed from the Demised Premises and to be transported for use, storage, or disposal in accordance and compliance with all applicable Environmental Laws; provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower Tenant shall not suffer and shall promptly cause to be paid and discharged take any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided remedial action in response to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part presence of any Taxes Hazardous Material in or Other Chargesabout the Demised Premises, provided that (i) Borrower is permitted nor enter into any settlement agreement, consent decree, or other compromise in respect to any claims relating to any Hazardous Material in any way connected with the Demised Premises without first notifying Landlord of Tenant's intention to do so under the provisions of and affording Landlord ample opportunity to appear, intervene, or otherwise appropriately assert and protect Landlord's interest with respect thereto. Landlord agrees to promptly respond to any mortgage or deed of trust superior in lien request made by Tenant pursuant to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedpreceding sentence.
Appears in 1 contract
hereof. Borrower will deliver Except as provided in Section 5.7(a) hereof, with respect to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are Tax Returns of any Company not then delinquent no later than ten (10) days filed prior to the date Closing Date that relate to a taxable period that ends on or prior to or includes the Closing Date, such Tax Returns shall be prepared or completed by each Company in a manner consistent with the prior practice of each Company (including elections and accounting methods and conventions, the conversion of the S Corps from subchapter "S" to subchapter "C" corporations and as otherwise required by applicable law or regulation or otherwise agreed to by each S Corp prior to the filing thereof), and in a manner that does not distort taxable income (e.g., by accelerating ---- income to a period or periods prior to the Closing Date or deferring deductions to a period or periods after the Closing Date).
(c) Although the Companies, as the taxpayers or in connection with filing the Tax Returns specified in Section 5.7(b) above, may be required to pay Income Taxes relating to time periods ending on or before the Closing Date ("Pre-Closing Income Taxes"), it is the intention of the Parties that, to the extent such Pre-Closing Income Taxes (including any penalties, interest or additions to Tax) were not fully accrued on the Closing Balance Sheet, the Existing Shareholders will be responsible for such Pre-Closing Income Taxes either by payment of such Pre-Closing Income Taxes themselves or pursuant to Section 8.1 hereof.
(d) City shall promptly notify the Existing Shareholders in writing upon receipt by City or any affiliate of City of notice of any pending or threatened proceeding relating to Taxes for which the Taxes and/or Other Charges would Existing Shareholders may be liable under a Tax proceeding ("Tax Proceeding"). The Existing Shareholders shall have the sole right to control, conduct, and otherwise be delinquent if not paid (represent the interests of each Company in any such Tax Proceeding; provided, however, that Borrower is -------- ------- without the prior written approval of City, which approval shall not required be unreasonably withheld or delayed, the Existing Shareholders shall not agree or consent to furnish compromise or settle any issue or claim arising in any such receipts Tax Proceeding to the extent that any such compromise, settlement, consent or agreement would have an adverse effect on City for payment any period ending after the Closing Date.
(e) None of Taxes in City nor any affiliate of City shall, without the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays prior written consent of the Existing Shareholders, which consent shall not be unreasonably withheld or causes delayed, file or cause to be paid all filed, any amended Tax Return or claim for Tax refund with respect to any Company relating to Taxes and Other Charges and provides a copy for which the Existing Shareholders may be liable hereunder. Promptly after the reasonable request of the receipt evidencing Existing Shareholders, at the payment thereof sole expense of the Existing Shareholders (provided that the Existing Shareholders shall not be -------- responsible for reimbursing City for the cost of City's employees' time expended in connection therewith), City shall, or cause the appropriate Company, to Lender, then Lender shall reimburse Borrowerfile any amended Tax Return or claim for Tax refund relating to Taxes for which the Existing Shareholders may be liable hereunder, provided that there are then sufficient proceeds in the such amended Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien -------- Returns or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding claims shall be permitted under and be conducted prepared in accordance a manner consistent with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted principles set forth in accordance with all applicable statutes, laws and ordinances; (iiiSection 5.7(b) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time whenhereof and, in the reasonable judgment determination of LenderCity, shall conform to applicable laws and regulations. If City or any affiliate of City shall receive a Tax refund relating to a period or transaction for which the entitlement Existing Shareholders are liable hereunder, City shall, within 30 days after receipt of such claimant is established.Tax refund, remit such Tax refund (including any
Appears in 1 contract
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (providedPROVIDED, howeverHOWEVER, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the its Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or 44 application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.
Appears in 1 contract
Sources: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten two (102) days Business Days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent or penalties or interest would accrue if not paid paid. Borrower shall furnish to Lender receipts for the payment of the Taxes and the Other Charges prior to the date the same shall become delinquent (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 6.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien lien or charge whatsoever which may be or become a Lien lien or charge against the PropertyProperties, and shall promptly pay for all utility services provided to the PropertyProperties. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) no Default or Event of Default has occurred and remains uncured; (ii) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the applicable Mortgage; (iiiii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iiiiv) neither the no Individual Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled canceled or lost; (ivv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (vvi) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the applicable Individual Property; and (vivii) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.
Appears in 1 contract
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (paid, provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in if the event that Tenant under a Lease pays such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges directly to the applicable authority and provides a copy Borrower timely requests and diligently pursues evidence of payment, and further provided that no enforcement action has been commenced by the receipt evidencing the payment thereof applicable authority resulting from such Tenant’s failure to pay Taxes or Other Charges, Borrower shall have an additional thirty (30) day period to provide such evidence to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the PropertyProperty (other than Permitted Encumbrances), and shall promptly pay for or cause to be paid all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) no Event of Default has occurred and remains uncured; (ii) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (iiiii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iiiiv) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (ivv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (vvi) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vivii) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedestablished or the Property (or part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, cancelled or lost or there shall be any danger of the Lien of the Mortgage being primed by any related Lien (other than Permitted Encumbrances). Notwithstanding the foregoing provisions of this Section 5.1.2, to the extent the Academy Lease remains in effect and Academy remains liable for the obligations under the Academy Lease, the right to contest the validity, applicability or amount of any asserted tax or assessment shall be governed by the Academy Lease.
Appears in 1 contract
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid paid. Borrower shall furnish to Lender receipts for the payment of the Taxes and the Other Charges prior to the date the same shall become delinquent (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes Taxes, Liens or Other Charges, provided that (i) no Event of Default has occurred and remains uncured; (ii) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (iiiii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iiiiv) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled canceled or lost; (ivv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes Taxes, Liens, or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (vvi) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vivii) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.
Appears in 1 contract
hereof. Borrower will shall deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or or Other Charges would otherwise be delinquent if not paid paid. Borrower shall furnish or cause Master Tenant to furnish to Lender receipts for the payment of the Taxes and the Other Charges prior to the date the same shall become delinquent (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that if such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes hereof and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paidreceived receipts from the relevant taxing authority). Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay or cause Master Tenant to pay for all utility services provided to the Property. After prior written notice to Lender, BorrowerBorrower or Master Tenant, at its Borrower’s or Master Tenant’s own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions no Event of any mortgage or deed of trust superior in lien to the MortgageDefault has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower and/or Master Tenant is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in impending danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower Borroweror Master Tenant shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or (if no security is required in the proceeding) as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender (x) may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedestablished or the Property (or part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, cancelled or lost or there shall be any danger of the Lien of the Security Instrument being primed by any related Lien, (y) shall make such security available to Borrower or Master Tenant, as the case may be, to satisfy any obligation that may be payable by it in connection with the matter so contested, and (z) provided that no Event of Default has occurred and is continuing, shall release any balance of such security to Borrower or Master Tenant, as the case may be.
Appears in 1 contract
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not permit or suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, other than Permitted Encumbrances and shall promptly pay for all utility services provided to the PropertyLiens in favor of Lender. After prior written notice to Lender, BorrowerBorrower or Operating Lessee, at its own sole cost and expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, ; provided that (ia) Borrower is permitted to do so under the provisions no Event of any mortgage or deed of trust superior in lien to the MortgageDefault has occurred and remains outstanding; (iib) such proceeding shall be permitted under and be conducted in accordance with the applicable or governing provisions of any other instrument to which Borrower Borrower, Operating Lessee or the Property is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinancesLegal Requirements; (iiic) neither the Property nor any part thereof or interest therein will be in imminent danger of being sold, forfeited, terminated, cancelled canceled or lost; (ivd) Borrower or Operating Lessee shall promptly upon final non-appealable determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (ve) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vif) Borrower shall furnish such cash or other security as may be required in the proceeding, or as may be reasonably requested by LenderLender (not to exceed 125% of the amount in dispute plus any estimated interest, penalties, fees, or other charges that may accrue during such contest), to insure ensure the payment of any such Taxes or Other Charges, together with all interest and penalties penalties, if any, thereon. Lender may pay over over, assign or transfer any such cash deposit security or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedestablished or the Property (or any part thereof or interest therein) shall be in imminent danger of being sold, forfeited, terminated, canceled or lost.
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hereof. Borrower will deliver to Lender receipts for payment If only a part of the Building shall be so condemned or other evidence satisfactory to Lender that taken, then (a) if substantial alteration or reconstruction of the Taxes Building or the Premises shall, in the reasonable opinion of the Landlord, be necessary or desirable as a result of such condemnation or taking, this Lease and Other Charges have been so paid or are not then delinquent no later than ten the term and estate hereby granted may be terminated by the Landlord within sixty (1060) days prior to following the date on which the Taxes and/or Other Charges would otherwise Landlord shall have received notice of such vesting of title, by a notice to the Tenant specifying a date, not less than thirty (30) days after the Landlord's notice, for such termination, or (b) if such condemnation or taking shall be delinquent of a substantial part of the Premises or of a substantial part of the means of access thereto, this Lease and the term and estate hereby granted may be terminated by the Tenant, within sixty (60) days following the date upon which the Tenant shall have received notice of such vesting of title, by a notice to the Landlord specifying a date, not less than thirty (30) days after the Tenant's notice, for such termination, or (c) if neither the Landlord nor the Tenant elects to terminate this Lease, this Lease shall not paid (providedbe affected by such condemnation or taking, howeverexcept that this Lease and the term and estate hereby granted with respect to the part of the Premises so condemned or taken shall expire on the date of the vesting of title to such part and except that the fixed rent payable under this Lease shall be abated to the extent, that Borrower is not required to furnish such receipts for payment of Taxes if any, hereinabove provided in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof)this Article. If Borrower pays or causes to be paid all Taxes and Other Charges and provides only a copy part of the receipt evidencing Premises shall be so condemned or taken and this Lease and the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax term and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower estate hereby granted with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided respect to the Property. After prior written notice to Lenderremaining portion of the Premises are not terminated, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and the Landlord will proceed with due reasonable diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted subject to do so under the provisions of any mortgage or deed Qualified Encumbrance and without requiring the Landlord to expend more than it collects as an award therefor, to restore the remaining portion of trust superior in lien the Premises as nearly as practicable to the Mortgage; (ii) same condition as it was in prior to such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof condemnation or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedtaking.
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hereof. The Borrower will deliver hereby agrees and consents to the complete assignment by the applicable Lenders of all of their respective rights under, interest in, title to and obligations under the Transaction Documents to the respective administrative or collateral agent under the applicable Conduit Lender’s Commercial Paper program. In addition, any Lender receipts for may at any time pledge or grant a security interest in all or any portion of its rights (including rights to payment of the principal balance of the Advances and Interest thereon) hereunder to secure obligations of such Lender to a Federal Reserve Bank or other evidence satisfactory central bank, without notice to or consent of the Borrower, the Administrative Facility Agent or any other party to this Agreement; provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto. At any time and from time to time, each Lender may, in accordance with applicable law, grant participations in all or a portion of its Commitment and/or its interest in the Advances and other payments due to it under this Agreement to any Person (each, a “Participant”). Each Lender hereby acknowledges and agrees that (A) any such participation shall not alter or affect such Lender’s direct obligations hereunder, and (B) neither the Taxes and Other Charges Borrower, any Subservicer, any Seller, the Master Servicer, the Lux Manager, the Administrative Agent, nor any Facility Agent shall have been so paid any obligation to have any communication or are not then delinquent no later than ten (10) days prior relationship with any Participant. The Borrower agrees that each Participant shall be entitled to the date on which benefits of, and responsible for its obligations under, Sections 2.08, 2.09 and 2.10 hereof to the Taxes and/or Other Charges would otherwise be delinquent same extent as if not paid (it were a Lender and had acquired its interest by assignment; provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and be required to make any greater payment under Section 2.08, 2.09 or 2.10 hereof than it would have been required to make if such participation had not occurred. Any Lender granting a participation shall promptly cause keep a register, acting as agent of the Borrower solely for this purpose, specifying such Participant’s entitlement to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part payments of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costsprincipal, interest and penalties which other amounts with respect to such participation. The entries in such register shall be conclusive absent manifest error, and the Borrower, the affected Lender and any Participant may be payable treat each Person whose name is recorded in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender register pursuant to the claimant entitled thereto terms hereof as a Participant for all purposes of this Agreement. Such register shall be available for inspection by the Borrower and any Participant at any reasonable time when, in the and from time to time upon reasonable judgment of Lender, the entitlement of such claimant is establishedprior notice.
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hereof. Borrower will deliver The Servicer shall not be liable for any costs relating to Lender receipts for payment the removal of the Trustee or the appointment of a new Trustee. Certain Rights of the Trustee. ------------------------------ Except as otherwise provided in Section 10.01 hereof: the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, note or other evidence satisfactory paper or document believed by it to Lender that the Taxes be genuine and Other Charges to have been so paid signed or are not then delinquent no later than ten (10) days presented by the proper party or parties; any request or direction of the Depositor, either of the Sellers, the Certificate Insurer or the Owners of any Class of Certificates mentioned herein shall be sufficiently evidenced in writing; whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the date on which the Taxes and/or Other Charges would otherwise Trustee (unless other evidence be delinquent if not paid (providedherein specifically prescribed) may, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy absence of bad faith on its part, rely upon an Officer's Certificate; the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower Trustee may consult with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Propertycounsel, and the written advice of such counsel (selected in good faith by the Trustee) shall promptly pay for all utility services provided to the Property. After prior written notice to Lenderbe full and complete authorization and protection in respect of any action taken, Borrower, at its own expense, may contest suffered or omitted by appropriate legal proceeding, promptly initiated and conducted it hereunder in good faith and in reasonable reliance thereon; the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the request or direction of any of the Owners pursuant to this Agreement, unless such Owners shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with due diligencesuch request or direction; the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, note or other paper or document, but the Trustee in its discretion may make such further inquiry or investigation into such facts or matters as it may see fit; the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys or custodians; the Trustee shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized by the Authorized Officer of any Person or within its rights or powers under this Agreement other than as to validity and sufficiency of its authentication of the Certificates; the right of the Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of such act; pursuant to the terms of this Agreement, the amount or validity or application Servicer is required to furnish to the Trustee from time to time certain information and to make various calculations which are relevant to the performance of the Trustee's duties under this Agreement. The Trustee shall be entitled to rely in whole or good faith on any such information and calculations in part the performance of any Taxes or Other Chargesits duties hereunder, provided that (i) Borrower unless and until an Authorized Officer of the Trustee has actual knowledge, or is permitted to do so under the provisions advised by any Owner of any mortgage a Certificate (either in writing or deed of trust superior in lien to the Mortgage; orally with prompt written or telecopies confirmation), that such information or calculations is or are incorrect, or (ii) unless there is a manifest error in any such proceeding information; and the Trustee shall not be required to give any bond or surety in respect of the execution of the Trust Estate created hereby or the powers granted hereunder. Not Responsible for Recitals or Issuance of Certificates. --------------------------------------------------------- The recitals and representations contained herein and in the Certificates, except any such recitals and representations relating to the Trustee, shall be permitted under taken as the statements of the Depositor and the Trustee assumes no responsibility for their correctness. The Trustee makes no representation as to the validity or sufficiency of this Agreement, of the Certificates, or any Home Equity Loan or document related thereto other than as to validity and sufficiency of its authentication of the Certificates. The Trustee shall not be conducted in accordance with accountable for the provisions use or application by the Depositor of any other instrument of the Certificates or of the proceeds of such Certificates, or for the use or application of any funds paid to which Borrower is subject the Depositor, either of the Sellers or the Servicer in respect of the Home Equity Loans or deposited into or withdrawn from the Principal and Interest Account or the Certificate Account by the Depositor, the Servicer or either of the Sellers, and shall not constitute a default thereunder and such proceeding shall be conducted have no responsibility for filing any financing or continuation statement in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto public office at any time whenor otherwise to perfect or maintain the perfection of any security interest or lien or to prepare or file any tax returns or Securities and Exchange Commission filings for the Trust or to record this Agreement. The Trustee shall not be required to take notice or be deemed to have notice or knowledge of any default unless an Authorized Officer of the Trustee shall have received written notice thereof or an Authorized Officer has actual knowledge thereof. In the absence of receipt of such notice, the Trustee may conclusively assume that no default has occurred. May Hold Certificates. ---------------------- The Trustee, any Paying Agent, Registrar or any other agent of the Trust, in its individual or any other capacity, may become an Owner or pledgee of Certificates and may otherwise deal with the reasonable judgment Trust with the same rights it would have if it were not Trustee, any Paying Agent, Registrar or such other agent. Money Held in Trust. -------------------- Money held by the Trustee in trust hereunder need not be segregated from other trust funds except to the extent required herein or required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Seller and except to the extent of Lender, income or other gain on investments which are deposits in or certificates of deposit of the entitlement of such claimant is establishedTrustee in its commercial capacity.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Contisecurities Asset Funding Corp)
hereof. Borrower will shall deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or or Other Charges would otherwise be delinquent if not paid (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in and Other Charges if such Taxes and Other Charges have been paid by Lender pursuant to Section 7.2 hereof). Borrower shall furnish to Lender receipts for the event that payment of the Taxes and Other Charges prior to the date the same shall become delinquent (provided, however, Borrower is not required to furnish such receipts for payment of Taxes if such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the any Individual Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its Borrower’s own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions no Event of any mortgage or deed of trust superior in lien to the MortgageDefault has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the applicable Individual Property nor any part thereof or interest therein will be in imminent danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the applicable Individual Property; and (vi) Borrower shall furnish such have set aside adequate reserves for the payment of the Taxes, together with all interest and penalties thereon, unless Borrower has paid the contested Taxes under protest; and (vii) Borrower shall have furnished the security (A) as may be is required in the proceeding, or (B) if Borrower shall have not previously paid all of the contested Taxes under protest or furnished the security required pursuant to clause (vii)(A), as may be reasonably requested by Lender, Lender to insure the payment of any such Taxes or Other Chargescontested Taxes, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedestablished or the applicable Individual Property (or part thereof or interest therein) shall be in imminent danger of being sold, forfeited, terminated, cancelled or lost or there shall be any imminent danger of the Lien of the Security Instrument being primed by any related Lien.
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hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges with respect the Collateral and/or the Property have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid paid. Borrower shall furnish to Lender copies of receipts for the payment of the Taxes and Other Charges prior to the date the same shall become delinquent (provided, however, that such Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereofhereof or by Mortgage Lender). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to LenderExcept for Permitted Encumbrances, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become became a Lien or charge against the Collateral or the Property, and shall cause to be paid promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest (or cause Mortgage Borrower to contest) by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other ChargesCharges or any other Lien or charge that may become a Lien or charge against the Property or the Collateral, provided that (i) Borrower is permitted to do so under the provisions no Event of any mortgage or deed of trust superior in lien to the MortgageDefault has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower or Mortgage Borrower, as applicable, is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither none of the Property nor Property, the Collateral, or any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other ChargesCharges or the amount necessary to discharge any Lien or satisfy any charge that may become a Lien or charge against the Property or Collateral, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the PropertyProperty or with respect to the Collateral; and (vi) Borrower shall furnish cause to be furnished such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other ChargesCharges or the amount necessary to discharge any Lien or satisfy any charge that may become a Lien or charge against the Property or Collateral, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedfinally established or the Property or the Collateral (or part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, cancelled or lost or there shall be any danger of the Lien of any Security Instrument or mortgage with respect to the Property being primed by any related Lien that is not a Permitted Encumbrance. To the extent that Mortgage Borrower satisfied requirements under the Mortgage Loan Documents for the furnishing of security in any such proceeding contesting Taxes or Other Charges, Borrower shall not be required to furnish security hereunder with respect to such proceeding.
Appears in 1 contract
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (paid. Borrower shall furnish to Lender receipts for the payment of the Taxes and the Other Charges prior to the date the same shall become delinquent provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (ia) no Default or Event of Default has occurred and remains uncured; (b) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (iic) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iiid) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (ive) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (vf) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vig) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedestablished or the Property (or part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, cancelled or lost or there shall be any danger of the Lien of the Mortgage being primed by any related Lien.
Appears in 1 contract
Sources: Loan Agreement (Fairchild Corp)
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section SECTION 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the PropertyProperties, and shall promptly pay for all utility services provided to the PropertyProperties. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the applicable Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the no Individual Property nor any part thereof or interest therein will be in immediate danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.;
Appears in 1 contract
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (providedPROVIDED, howeverHOWEVER, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the 33 payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.
Appears in 1 contract
Sources: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
hereof. Borrower will deliver shall furnish to Lender receipts for the payment or other evidence satisfactory to Lender that of the Taxes and the Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (same shall become delinquent; provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 6.2 hereof). If Borrower pays or causes Subject to be paid all Taxes and Other Charges and provides a copy Borrower’s right to contest set forth in Section 3.6(b) of the receipt evidencing the payment thereof to LenderMortgage, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not permit or suffer and shall promptly cause to be paid and discharged discharge any Lien or charge whatsoever which may be or become a Lien lien or charge against the Property, and shall promptly pay for all utility services provided to the PropertyProperty other than Permitted Encumbrances. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions no Event of any mortgage or deed of trust superior in lien to the MortgageDefault has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled canceled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) unless Taxes or Other Charges have been previously paid, such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) to the extent that Borrower has not paid to or deposited with the applicable taxing authority the full amount of the contested Taxes or Other Charges or if Borrower is paying Taxes to Lender pursuant to Section 6.2 hereof and has requested Lender to not pay the contested amount of the Taxes during the continuance of the legal proceeding (in which event Lender shall not pay such amount of the Taxes during the continuance of such proceeding), Borrower shall furnish such deposit with Lender cash, or other security as may be required in the proceeding, or as may be reasonably requested approved by Lender, in an amount equal to one hundred twenty-five percent (125%) of the unpaid contested amount, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon, but no such security shall be required if Borrower is paying Taxes to Lender pursuant to Section 6.2 hereof. Lender may pay over any such cash deposit or part thereof other security held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.
Appears in 1 contract
hereof. Borrower will deliver In making any disbursement from the Tax and Insurance Reserve Account, Lender may do so according to any bill, statement or estimate procured from the appropriate public off▇▇▇ or tax lien service (with respect to Taxes) or insurer or agent (with respect to Insurance Premiums), without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax, assessm▇▇▇, sale, forfeiture, tax lien or title or claim thereof. Provided (i) no Event of Default has occurred and is continuing, (ii) the Tax and Insurance Reserve Account contains sufficient funds to pay all applicable Taxes and (iii) Lender receipts for payment is not prohibited from doing so by any applicable law, rule or other evidence satisfactory to regulation, Lender that shall pay the Taxes and Other Charges have been so paid to the applicable Governmental Authority on or are not then delinquent before the date such Taxes would become delinquent, but in no later event earlier than ten the earlier of (10a) fifteen (15) days prior to the date on which such Taxes would be delinquent, (b) the Taxes and/or Other Charges would otherwise be delinquent if not paid (provided, however, date that Borrower is not required additional charge or interest will accrue due to furnish such receipts for the non-payment of such Taxes, or (c) a date that is at least fifteen (15) days after written request from Borrower to pay such Taxes, but in no event shall Lender be obligated to pay any Taxes prior to receipt of the amount indicated in the event that applicable Estimated Annual Tax Notice for such real estate tax year (the "REAL ESTATE TAX PAYMENT DATE"). If the amount of the Tax and Insurance Reserve Funds shall exceed the amounts due for Taxes have been paid by Lender and Insurance Premiums pursuant to Section 7.2 5.4 and Section 8.1 hereof). If , Lender shall, in its sole discretion, return any excess to Borrower pays or causes credit such excess against future payments to be paid all Taxes made to the Tax and Other Charges and provides a copy Insurance Reserve Account. In allocating any such excess, Lender may deal with the person shown on Lender's records as being the owner of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds Property. Any amount remaining in the Tax and Insurance Escrow Fund Reserve Account after the Debt has been paid in full shall be returned to Borrower or the person shown on Lender's records as being the owner of the Property and provided no other party shall have any right or claim thereto. If at any time Lender reasonably determines that the Tax and Insurance Reserve Funds are not or will not be sufficient to pay Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereofand Insurance Premiums by the dates set forth in (a) and (b) above, Lender shall provide notify Borrower with evidence that of such Taxes have been paid. determination and Borrower shall not suffer and shall promptly cause pay to be paid and discharged Lender any Lien or charge whatsoever which may be or become a Lien or charge against amount necessary to make up the Property, and shall promptly pay for all utility services provided to the Property. After prior written deficiency within thirty (30) days after notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedBorrower requesting payment thereof.
Appears in 1 contract
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (providedPROVIDED, howeverHOWEVER, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be he required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.
Appears in 1 contract
Sources: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
hereof. Borrower The Grantor further represents and warrants that (i) the Ground Lease is in full force and effect, (ii) there are no defaults by the Grantor under the Ground Lease, and (iii) no event has occurred and is continuing which after notice or passage of time or both will deliver to Lender receipts for payment or other evidence satisfactory to Lender result in such a default by the Grantor; and the Grantor hereby agrees that the Taxes and Other Charges have been so paid Grantor will perform or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrowerperformed, at its own expensethe expense of the Grantor, may contest all the covenants and conditions required to be performed by appropriate legal proceedingthe Grantor under the Ground Lease, promptly initiated and conducted in good faith and with due diligencewill do all things necessary to preserve unimpaired the rights of the Grantor thereunder, the amount or validity or application will not enter into any agreement terminating, in whole or in part, modifying, amending, or subordinating to any other interest, the Ground Lease or releasing the lessor thereunder from any obligations imposed upon the lessor thereby, which termination, modification, amendment or subordination shall be of no force and effect without the prior written consent of the Grantee, and, if the Grantor receives a notice of default under the Ground Lease (or any complaint, summons, or other pleading or filing in connection with any action or proceeding to evict the Grantor or to recover possession of the Leasehold Property, or otherwise affecting the Ground Lease or the Leasehold Property), will immediately cause a copy of such notice, complaint, summons, pleading or filing to be sent to the Grantee. The Grantor further agrees that if the Ground Lease is terminated prior to the expiration of its term by reason of the Grantor's default, and if, pursuant to any provision of the Ground Lease, or otherwise, the Grantee or its designee shall acquire from the lessor under the Ground Lease a new lease of the fee interest of the Leasehold Property or any part thereof, the Grantor shall have no right, title or interest in the new lease. The Grantor also agrees that so long as this Mortgage is in effect there shall be no merger of the Ground Lease with the fee estate in the Leasehold Property, in whole or in part, by reason of the fact that the Ground Lease may be held directly or indirectly by or for the account of any person who shall hold the fee interest in all or part of the Leasehold Property or any Taxes or Other Charges, provided that (i) Borrower is permitted to do so interest of the lessor under the provisions of Ground Lease. In the event that the Grantor acquires the fee title or any other interest in the Leasehold Property, unless the Grantor furnishes to the Grantee evidence reasonably satisfactory to the Grantee that the Leasehold Property and the fee estate have not merged and the Ground Lease retains priority over any encumbrances on the fee interest or other interest in the Leasehold Property (or that there are no such encumbrances), this Mortgage will attach to and cover and be a lien upon the fee title or such other interest so acquired and the fee title or other interest shall, without further assignment, mortgage or deed of trust superior in lien conveyance, become subject to the lien of this Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.
Appears in 1 contract
Sources: Agreement of Lease
hereof. Borrower will deliver shall furnish to Lender receipts for the payment or other evidence satisfactory to Lender that of the Taxes and the Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (same shall become delinquent; provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 6.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not permit or suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own sole cost and expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, ; provided that (ia) no Default or Event of Default has occurred and remains outstanding; (b) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the MortgageSecurity Instrument; (iic) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower or the Property is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinancesLegal Requirements; (iiid) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled canceled or lost; (ive) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (vf) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vig) except to the extent already deposited with Lender pursuant to Section 6.2 hereof, Borrower shall furnish such cash or other security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure ensure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon; and (h) such contest by Borrower is not in violation of the Leases. Lender may pay over over, assign or transfer any such cash deposit security or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedestablished or the Property (or any part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, canceled or lost or there shall be any danger of the Lien of the Security Instrument being primed by any related Lien.
Appears in 1 contract
Sources: Loan Agreement (American Realty Capital - Retail Centers of America, Inc.)
hereof. Borrower will deliver to Lender receipts for payment or other evidence reasonably satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid paid. Borrower shall furnish to Lender receipts for the payment of the Taxes and the Other Charges prior to the date the same shall become delinquent (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the PropertyProperties, and shall promptly pay for all utility services provided to the PropertyProperties. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) no Default or Event of Default has occurred and remains uncured; (ii) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the applicable Mortgage; (iiiii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.;
Appears in 1 contract
Sources: Loan Agreement (Koger Equity Inc)
hereof. The Borrower will deliver shall cause the Premises to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes be at all times operated, managed and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (providedmaintained, however, that Borrower is not required to furnish such receipts for payment of Taxes at all times and in the event that such Taxes have been paid by Lender manner and accordance with the standards required pursuant to Section 7.2 hereofany Management Agreement and any Leasing Services Agreement (including all marketing, advertising, promotional and reservation programs), except where the failure to do so would not reasonably be expected to have a Material Adverse Effect, or would not result in a material default under such agreements (if any) but in no event below Comparable Standards. If The Borrower pays shall, except where the failure to comply would not reasonably be expected to have a Material Adverse Effect, or causes would not result in a material default under such agreements observe, perform, and discharge in all material respects all obligations, covenants, and warranties provided for under the terms of any Management Agreement and any Leasing Services Agreement to be paid all Taxes kept, observed, and Other Charges and provides a copy of performed by the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, subject however to any applicable cure periods provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2therein. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. The Borrower shall not suffer terminate or cancel any Management Agreement or any Leasing Services Agreement without the prior written consent of the Agent, which consent shall not be unreasonably withheld or delayed. The Borrower shall not enter into any other management agreement for management of the Hotel Premises or the Casino which is not a "Management Agreement" as defined herein, a leasing and/or services agreement which is not a "Leasing Services Agreement" as defined herein, or a franchise agreement with respect to the Premises, in each case without Agent's prior written consent (acting upon the reasonable direction of the Required Lenders), which consent shall not be unreasonably withheld or delayed. The Borrower shall not amend, modify or waive any material provision of any Management Agreement or any Leasing Services Agreement except upon notice and with the prior written consent of Agent (acting upon the reasonable direction of the Required Term Loan A Lenders), which consent shall promptly cause not be unreasonably withheld or delayed. The Borrower shall use its commercially reasonable efforts to secure the performance of the obligations of the Manager under any Management Agreement and of any Leasing Manager under the Leasing Services Agreement and to enforce the Borrower's rights thereunder. The Borrower shall not pledge, transfer, assign, mortgage or encumber the Borrower's interest in any Management Agreement or any Leasing Services Agreement or any interest therein, or allow to be paid and discharged encumbered the Borrower's interest in any Lien Management Agreement or charge whatsoever which may be any Leasing Services Agreement or become a Lien or charge against the Propertyany interest therein, and shall promptly pay for all utility services in each case other than as provided herein to the PropertyAgent and the Lenders. After Notwithstanding the above, the Borrower may replace any Manager with an Identified Hotel Manager without the prior written notice consent of the Agent.
(b) The Borrower shall not consent to Lenderany assignment by any Manager of its rights and obligations under any Management Agreement or any Leasing Manager under any Leasing Services Agreement without Agent's prior written consent (acting upon the reasonable direction of the Required Lenders), Borrowerwhich consent shall not be unreasonably withheld or delayed.
(c) In the event (x) a Manager is terminated and replaced with a new Manager, at its own expense, may contest by appropriate legal proceeding, promptly initiated which termination and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding replacement shall only be permitted under and be conducted in accordance with the provisions of this Agreement, or (y) of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding under, or the termination of, any agreement entered into in connection with the Time Share Plan or Time Share Premises, no termination fee, penalty, liability, cost or expense, or rebranding fee, penalty, liability, cost or expense, shall be conducted paid from any income or cash flow of the Premise without the prior written consent of the Agent (acting at the direction of the Required Lenders in accordance with all applicable statutestheir sole and absolute discretion); provided, laws however, that the Borrower may pay (i) hotel rebranding fees, penalties, liabilities, costs or expenses (but no termination fees, penalties, liabilities, costs or expenses) from funds constituting the Reserve Amount without the prior written consent of the Required Lenders and ordinances(ii) any termination or rebranding fees, penalties, liabilities, costs or expenses from new equity contributed to the Borrower by the Investor Group; (iii) neither provided, further, that no income or cash flow of the Property nor Premises shall be used to redeem or purchase any part thereof or interest therein will be Equity Interest in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay EquityCo in the amount event of any such Taxes default under, or Other Chargestermination of, together with all costs, interest and penalties which may be payable any agreement entered into in connection therewith; (v) such proceeding shall suspend with the collection of such contested Taxes Time Share Plan or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedTime Share Premises.
Appears in 1 contract
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Property Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior upon request of Lender. Subject to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (provided, however, that Borrower is not required Borrower’s and Operating Lessee’s right to furnish such receipts for payment of Taxes contest set forth in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If next sentence, neither Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender nor Operating Lessee shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, BorrowerBorrower or Operating Lessee, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Property Taxes or Other Charges, Charges or other Lien provided that the following conditions are satisfied: (ia) no Default or Event of Default has occurred and remains uncured; (b) Borrower or Operating Lessee is permitted to do so contest under the provisions of any mortgage document or deed of trust superior in lien to agreement affecting the MortgageProperty; (iic) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower or Operating Lessee is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws Laws and ordinances; (iiid) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lostlost during the pendency of such contest; (ive) Borrower shall promptly upon final determination thereof pay pay, or cause to be paid, the amount of any such Property Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; and (vf) such proceeding shall suspend the collection of such contested Property Taxes or Other Charges from the Property; Property and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedproceeding.
Appears in 1 contract
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or and Other Charges would otherwise be delinquent if not paid paid. Borrower shall furnish to Lender receipts for the payment of the Taxes and Other Charges prior to the date the same shall become delinquent (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to LenderExcept for Permitted Encumbrances, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become became a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other ChargesCharges (other than the casino franchise fee imposed by Act No. 221 of May 15, 1948, as amended, of the Commonwealth of Puerto Rico) or any other Lien or charge that may become a Lien or charge against the Property, provided that (i) Borrower is permitted to do so under the provisions no Event of any mortgage or deed of trust superior in lien to the MortgageDefault has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the no Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other ChargesCharges or the amount necessary to discharge any Lien or satisfy any charge that may become a Lien or charge against the Property, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other ChargesCharges or the amount necessary to discharge any Lien or satisfy any charge that may become a Lien or charge against the Property, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedfinally established or the Property (or part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, cancelled or lost or there shall be any danger of the Lien of any Security Instrument being primed by any related Lien that is not a Permitted Encumbrance.
Appears in 1 contract
hereof. Borrower will deliver shall furnish to Lender receipts for the payment or other evidence satisfactory to Lender that of the Taxes and the Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (same shall become delinquent; provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 6.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not permit or suffer and shall promptly cause to be paid and discharged discharge any Lien or charge whatsoever which may be or become a Lien lien or charge against the Property, and shall promptly pay for all utility services provided to the PropertyProperty other than Permitted Encumbrances. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions no Event of any mortgage or deed of trust superior in lien to the MortgageDefault has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled canceled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) to the extent that Borrower has not paid to the applicable taxing authority the full amount of the contested Taxes or Other Charges or if Borrower is paying Taxes to Lender pursuant to Section 6.2 hereof and has requested Lender to not pay the contested amount of the Taxes during the continuance of the legal proceeding (in which event Lender shall not pay such amount of the Taxes during the continuance of such proceeding), Borrower shall furnish such deposit with Lender cash, or other security as may be required in the proceeding, or as may be reasonably requested approved by Lender, in an amount equal to one hundred twenty-five percent (125%) of the unpaid contested amount, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon, but no such security shall be required if Borrower is paying Taxes to Lender pursuant to Section 6.2 hereof. Lender may pay over any such cash deposit or part thereof other security held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.
Appears in 1 contract
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (providedPROVIDED, howeverHOWEVER, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.and
Appears in 1 contract
Sources: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
hereof. Borrower will deliver Seller shall retain, on a non-exclusive basis with Purchaser, all rights to Lender receipts for payment or other evidence satisfactory to Lender seek recovery of these amounts from any third party that the Taxes and Other Charges actually may have been so paid responsible for any such losses, and Purchaser shall cooperate with those efforts at no cost or are expense to Purchaser. Notwithstanding anything to the contrary herein contained, to the extent that Purchaser shall have actual knowledge or shall be "deemed to have known" prior to the expiration of the Due Diligence Period that any of the representations and/or warranties made herein by Seller shall be inaccurate, untrue and/or incorrect in any respect, such representations and warranties shall be deemed to have been modified to reflect such knowledge or deemed knowledge, as the case may be. For purposes of this Agreement, Purchaser shall be "deemed to have known" of the existence of a fact or circumstance, to the extent that (a) this Agreement, (b) the Due Diligence Materials listed on Exhibit E, (c) any estoppel certificate executed by any Tenant or Seller and delivered to Purchaser, (d) the Side Letter Agreement, or (e) any tests, studies, reports, analyses, appraisals, verifications and/or evaluations prepared by or for Purchaser or any of Purchaser's Consultants and delivered to Purchaser, or otherwise obtained by Purchaser or any of Purchaser's Consultants, shall disclose a fact or circumstance, or otherwise contain information, that shall be inconsistent in any way with any representation and/or warranty made herein by Seller. If, after the expiration of the Due Diligence Period, but prior to the applicable Closing, Purchaser shall know or be deemed to have known that any of the representations and/or warranties made herein by Seller shall be untrue, inaccurate and/or incorrect in any material respect, Purchaser shall give Seller written notice thereof within five (5) business days of obtaining actual knowledge (but, in any event, prior to the applicable Closing). If, at or prior to the applicable Closing, Seller shall obtain actual knowledge that any of the representations or warranties made herein by Seller shall be untrue, inaccurate and/or incorrect in any material respect, Seller shall give Purchaser written notice thereof within five (5) business days of obtaining such knowledge (but, in any event, prior to the applicable Closing). In either such event, Seller shall have the right to cure such breach and shall be entitled to a reasonable adjournment of the Closing (not then delinquent no later than to exceed ten (10) days prior to business days) for such purpose. On the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrowerother hand, if Lender has paid Seller shall be unable to so cure any such Taxes pursuant breach, or, if Seller shall elect, in its sole and absolute discretion, not to Section 7.2 hereofcure such breach, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior by giving Purchaser written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.such
Appears in 1 contract
Sources: Sale Agreement (Amb Property Lp)
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (providedPROVIDED, howeverHOWEVER, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and 39 Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the its Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgageintentionally omitted; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.
Appears in 1 contract
Sources: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
hereof. Borrower will deliver Tenant's obligation to Lender receipts for payment or other evidence satisfactory to Lender that keep, maintain, preserve and repair the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior Premises shall specifically extend to the date on cleanup and removal of all Hazardous Materials to the extent required by Tenant in Article 8 hereof. Tenant shall, upon the expiration or earlier termination of the Term, surrender the Property to Landlord in its condition as of the commencement of Tenant's operation of the Club for member use, usual and ordinary wear and tear and any alterations, additions and improvements permitted under this Lease excepted, and except as otherwise provided in Articles 21 and 22 hereof. Landlord shall have no obligation to alter, remodel, improve, repair, decorate or paint the Property or any part thereof, except as provided in Section 15.2 hereof and except for cleanup and removal of Hazardous Materials to the extent required in Article 8 hereof. The parties hereto affirm that Land▇▇▇▇ has made no representations to Tenant respecting the condition of the Property except as specifically set forth in Article 13 hereof. In addition, the parties hereto affirm that Landlord shall have absolutely no obligation to keep, maintain or repair any portion of the interior of the Premises except as herein expressly provided. Landlord shall be responsible for repairs to the Property caused by the negligence or willful misconduct of Landlord or its employees, agents, or contractors. Notwithstanding the foregoing, to the extent that insurance carried by Landlord or Tenant provides coverage for the cost of any maintenance or repair or replacement which is Tenant's obligation pursuant hereto, Tenant shall be entitled to all benefits of such insurance. Landlord's Obligations. Subject to the Taxes and/or Other Charges would otherwise be delinquent if not paid last sentence of this Section 15.2, Landlord shall (provided, however, that Borrower is not required subject to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender reimbursement therefor pursuant to Section 7.2 7 hereof). If Borrower pays ) keep, maintain and repair, or causes cause to be paid all Taxes kept, maintained and Other Charges and provides a copy repaired, the Building (exclusive of the receipt evidencing Property) and the payment thereof Common Areas in a first-class manner and be responsible for the repair and maintenance of the structural elements of the Development except to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided extent that the Taxes are necessity for any repair or maintenance shall be attributable to alterations performed by or through Tenant or by the negligence or willful misconduct of Tenant or its employees, agents, contractors, licensees or invitees. Notwithstanding the foregoing, Landlord shall (without being paid subject to reimbursement therefor pursuant to Section 7.2. Upon written request 7 hereof) repair all defects in Landlord's construction of Borrower, the Club (if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Propertyextent expressly provided in the Work Letter) and Common Areas. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part Landlord shall grant easements and/or grant rights of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien way to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument extent necessary for utility companies to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required bring those services identified in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender Work Letter to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedPremises.
Appears in 1 contract
Sources: Lease Agreement (Sports Club Co Inc)
hereof. Borrower will deliver shall furnish to Lender receipts for the payment or other evidence satisfactory to Lender that of the Taxes and the Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (same shall become delinquent; provided, however, that so long as no Event of Default has occurred and is continuing, Borrower is not required to furnish such receipts for payment of Taxes and Other Charges in the event that such Taxes and Other Charges have been paid or were to have been paid by Lender pursuant to Section 7.2 6.2 hereof). If Borrower pays or causes Subject to be paid all Borrower’s right to contest such Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lenderas hereinafter provided, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not permit or suffer and shall promptly cause to be paid and discharged discharge any Lien lien for Taxes or charge whatsoever which may be or become a Lien or charge Other Charges against the Property, and shall promptly pay Property (other than liens for all utility services provided to the PropertyTaxes or Other Charges not yet due or payable). After prior written notice to Lender, Borrower, at its own expense, and notwithstanding anything to the contrary contained in this Agreement or the other Loan Documents, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes Taxes, Liens or Other Charges, provided that (ia) Borrower is permitted to do so under the provisions no Default or Event of any mortgage or deed of trust superior in lien to the MortgageDefault has occurred and remains uncured; (iib) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iiic) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled canceled or lost; (ivd) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes Taxes, Liens or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (ve) such proceeding shall suspend the collection of such contested Taxes Taxes, Liens or Other Charges from the Property; and (vif) Borrower shall furnish such deposit with Lender cash, or other security as may be approved by Lender, in an amount equal to one hundred twenty percent (120%) of the contested amount (provided, that Borrower shall not be required to deposit any such cash or post security with respect to claims which in the proceeding, or as may be reasonably requested by Lenderaggregate do not exceed $125,000.00 ), to insure the payment of any such Taxes Taxes, Liens or Other Charges, together with all interest and penalties thereon, and (g) such contest by Borrower is not in violation of Leases or Operating Agreements. Lender may pay over any such cash deposit or part thereof other security held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.
Appears in 1 contract
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid paid. Borrower shall furnish to Lender receipts for the payment of the Taxes and the Other Charges prior to the date the same shall become delinquent (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 SECTION 7.3 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien lien or charge whatsoever which may be or become a Lien lien or charge against the PropertyProperties, and shall promptly pay for all utility services provided to the PropertyProperties. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) no Default or Event of Default has occurred and remains uncured; (ii) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the applicable Mortgage; (iiiii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iiiiv) neither the no Individual Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.;
Appears in 1 contract
Sources: Loan Agreement (Capstar Hotel Co)
hereof. Borrower will deliver Each Agent (including the Purchasing Agent) severally agrees to Lender receipts indemnify and hold harmless the Company, each person, if any, who controls (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act), the Company, and the Company’s and such person’s officers and directors from and against any and all losses, liabilities, costs or claims (or actions in respect thereof) to which any of them may become subject (including all reasonable costs of investigating, disputing or defending any such claim or action), insofar as such losses, liabilities, costs or claims (or actions in respect thereof) arise out of or in connection with any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Permitted Free Writing Prospectus, the Pricing Disclosure Material, the Prospectus, any free writing prospectus prepared by or on behalf of the Agent, or any amendment or supplement thereto, or any omission or alleged omission to state therein a material fact necessary to make the statements therein not misleading, in each case as to the Registration Statement, any Permitted Free Writing Prospectus, the Pricing Disclosure Material, the Prospectus, or any amendment or supplement thereto, only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the section of the Prospectus entitled “Plan of Distribution” or any amendment or supplement thereto, or was otherwise made in reliance on and in conformity with written information furnished to the Company by you expressly for payment use in the Registration Statement, any Permitted Free Writing Prospectus, the Pricing Disclosure Material, the Prospectus, or other evidence is contained in any free writing prospectus that is not a Permitted Free Writing Prospectus prepared by or on behalf of the Agent (except to the extent such information has been accurately extracted from the Prospectus or any Permitted Free Writing Prospectus prepared by or on behalf of the Company), or any amendment or supplement thereto. Each Agent (including the Purchasing Agent) severally agrees to indemnify and hold harmless the Company, the Purchasing Agent, each director and officer of the Company or of the Purchasing Agent, and each person, if any, who controls (within the meaning of Section 15 of the Securities Act) the Company against any and all losses, claims, damages, liabilities, expenses, actions and demands to which they or any of them may become subject (including all reasonable costs of investigating, disputing or defending any such claim, action or demand) under the law of any jurisdiction or which may be made against them arising out of, or in connection with the breach of such Agent (including the Purchasing Agent) of any of the terms, conditions, agreements and representations of Section IV of this Agreement. If any claim, demand, action or proceeding (including any governmental investigation) shall be brought or alleged against an indemnified party in respect of which indemnity is to be sought against an indemnifying party pursuant to the preceding paragraphs, the indemnified party shall promptly notify the indemnifying party in writing, and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to Lender that the Taxes indemnified party to represent the indemnified party and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior any others the indemnified party may designate in such proceeding and shall pay the reasonable fees and expenses of such counsel related to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (such proceeding; provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower indemnifying party shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided have employed counsel reasonably satisfactory to the Propertyindemnified party to represent the indemnified party within a reasonable time after notice of any such proceeding, the indemnified party shall then be entitled to retain counsel reasonably satisfactory to itself and the indemnifying party shall pay the reasonable fees and disbursements of such counsel relating to the proceeding. After prior written notice In any such proceeding, any indemnified party shall have the right to Lender, Borrower, at retain its own expensecounsel, may contest by appropriate legal proceeding, promptly initiated but the reasonable fees and conducted in good faith and with due diligence, expenses of such counsel shall be at the amount or validity or application in whole or in part expense of any Taxes or Other Charges, provided that such indemnified party unless (i) Borrower the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the indemnifying party has failed within a reasonable time to retain counsel reasonably satisfactory to such indemnified party pursuant to the preceding sentence or (iii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is permitted agreed that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate law firm (in addition to do so under local counsel where necessary) for all such indemnified parties. Such firm shall be designated in writing by the provisions indemnified party. The indemnifying party shall not be liable for any settlement of any mortgage proceeding effected without its written consent, but if settled with such consent or deed if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of trust superior such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in lien respect of which any indemnified party is entitled to indemnification hereunder, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the Mortgagesubject matter of such proceeding. The indemnity agreements contained in this Section VII and the representations and warranties of the Company and the Agents in this Agreement, shall remain operative and in full force and effect regardless of: (i) any termination of this Agreement; (ii) any investigation made by an indemnified party or on such proceeding shall be permitted under party’s behalf or any person controlling an indemnified party or by or on behalf of the indemnifying party, its directors or officers or any person controlling the indemnifying party; and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither acceptance of and payment for any of the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedNotes.
Appears in 1 contract
Sources: Selling Agent Agreement (Gmac LLC)
hereof. Borrower will deliver ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FILED UNDER SUCH ACT OR QUALIFICATION OBTAINED UNDER SUCH STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR QUALIFICATION UNDER SUCH STATE SECURITIES LAWS." Except as otherwise permitted by this Section 2, each stock certificate for Warrant Shares issued upon the exercise of any Warrant and each stock certificate issued upon the direct or indirect transfer of any such Warrant Shares shall be stamped or otherwise imprinted with a legend in substantially the following form: "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FILED UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT." Notwithstanding the foregoing, the Warrantholder may require the Company to Lender receipts issue a new stock certificate for payment Warrant Shares without a legend if (i) such Warrant or other evidence Warrant Shares, as the case may be, have been registered for resale under the Securities Act or sold pursuant to Rule 144 under the Securities Act (or a successor rule thereto) and qualified under any applicable blue-sky law or (ii) the Warrantholder has received an opinion of counsel reasonably satisfactory to Lender the Company that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (provided, however, that Borrower such registration is not required with respect to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes Warrant Shares and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged no qualification is required under any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedstate blue-sky law.
Appears in 1 contract
Sources: Stock Purchase Agreement (Western Micro Technology Inc)
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid paid. Borrower shall furnish to Lender receipts for the payment of the Taxes and the Other Charges prior to the date the same shall become delinquent (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to LenderExcept for Permitted Encumbrances, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the PropertyProperties, and shall promptly pay for all utility services provided to the PropertyProperties. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other ChargesCharges (other than the casino franchise fee imposed by Act No. 221 of May 15, 1948 as amended, of the Commonwealth of Puerto Rico) or any other Lien or charge that may become a Lien or charge against an Individual Property, provided that (i) Borrower is permitted to do so under the provisions no Event of any mortgage or deed of trust superior in lien to the MortgageDefault has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the no Individual Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other ChargesCharges or the amount necessary to discharge any Lien or satisfy any charge that may become a Lien or charge against an Individual Property, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the applicable Individual Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other ChargesCharges or the amount necessary to discharge any Lien or satisfy any charge that may become a Lien or charge against an Individual Property, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedfinally established or any Individual Property (or part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, cancelled or lost or there shall be any danger of the Lien of any Security Instrument being primed by any related Lien that is not a Permitted Encumbrance.
Appears in 1 contract
hereof. Borrower will deliver shall furnish to Lender receipts for the payment or other evidence satisfactory to Lender that of the Taxes and the Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be same shall become delinquent if not paid (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes and Other Charges in the event that such Taxes and Other Charges have been paid by Lender pursuant to Section 7.2 8.6 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien lien or charge whatsoever which may be or become a Lien lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. .
(b) After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions no Event of any mortgage or deed of trust superior in lien to the MortgageDefault has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be permitted by and conducted in accordance with all applicable statutes, laws and ordinancesApplicable Law; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled canceled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or deliver to Lender such reserve deposits as may be reasonably requested by Lender▇▇▇▇▇▇, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender ▇▇▇▇▇▇ to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedestablished or the Property (or part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, canceled or lost or there shall be any danger of the lien of the Security Instrument being primed by any related lien.
Appears in 1 contract
Sources: Loan Agreement
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (providedPROVIDED, howeverHOWEVER, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 1.1 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the its Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final 37 determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.
Appears in 1 contract
Sources: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are arc not then delinquent no later than than, ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal ▇▇▇▇▇ proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be he permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.
Appears in 1 contract
Sources: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid paid. Borrower shall furnish to Lender receipts for the payment of the Taxes and the Other Charges prior to the date the same shall become delinquent (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the PropertyProperties, and shall promptly pay for all utility services provided to the PropertyProperties. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other ChargesCharges or any Lien or charge that may become a Lien or charge against the Properties, provided that (i) Borrower is permitted to do so under the provisions no Event of any mortgage or deed of trust superior in lien to the MortgageDefault has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any applicable Ground Lease and any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the no Individual Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other ChargesCharges or the amount necessary to discharge any Lien or satisfy any charge that may become a Lien or charge against the Properties, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the applicable Individual Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, or the amount necessary to discharge any Lien or satisfy any charge that may become a Lien or charge against the Properties, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedfinally established or any Individual Property (or part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, cancelled or lost or there shall be any danger of the Lien of any Mortgage being primed by any related Lien.
Appears in 1 contract
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid paid. Borrower shall furnish or cause Master Lessee to furnish to Lender receipts for the payment of the Taxes and the Other Charges prior to the date the same shall become delinquent (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer suffer, and shall promptly cause to be paid and discharged discharged, any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay or cause Master Lessee to pay for all utility services provided to the Property. After prior written notice to Lender, BorrowerBorrower or Master Lessee, at its Borrower’s or Master Lessee’s own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions no Event of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under Default has occurred and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.remains uncured;
Appears in 1 contract
hereof. Borrower will deliver shall furnish to Lender receipts for the payment or other evidence satisfactory to Lender that of the Taxes and the Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (same shall become delinquent; provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 6.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not permit or suffer and shall promptly cause to be paid and discharged discharge any Lien or charge whatsoever which may be or become a Lien lien or charge against the Property, and shall promptly pay for all utility services provided Property (but subject to the Propertyforegoing provisions of this Section 4.1.2). After prior written notice to LenderLender (unless subclause (v)(y) of this Section 4.1.2 is applicable), Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions no Event of any mortgage or deed of trust superior in lien to the MortgageDefault has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled canceled or lostlost during the pendency of such contest; (iv) unless subclause (v)(y) of this Section 4.1.2 is applicable, Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) either (x) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the PropertyProperty or (y) Borrower shall have paid or discharged by bond Or otherwise all of the Taxes or Other Charges under protest; and (vi) unless subclause (v)(y) of this Section 4.1.2 is applicable, Borrower shall furnish have furnished such security (if any) as may be required in the proceeding, or as may be reasonably requested by Lender, Lender to insure the payment of any such contested Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof other security held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.
Appears in 1 contract
hereof. Borrower will deliver and each of its Subsidiaries shall use its best efforts to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes cause its insurance carriers to be paid obligated to notify Agent 30 days in advance if any carrier intends to cancel the insurance policies. Borrower shall, and shall cause each of its Subsidiaries to, pay when due all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paidinsurance premiums payable by them. Borrower shall not suffer deliver to Agent, upon request, a certificate of insurance that evidences the existence of each policy of insurance, payment of all premiums therefor and compliance with Section 4.11 hereof and this Section 6.9. In addition, Borrower shall notify Agent promptly cause to be paid of any occurrence causing a material loss or decline in value of any real or personal property used by Borrower and discharged the estimated (or actual, if available) amount of such loss or decline. Upon the occurrence of any Lien event causing a material loss or charge whatsoever decline in value of any real or personal property of any Client against which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith Borrower has made documented advances and with due diligencerespect to which Borrower has received the proceeds thereof, Borrower shall notify Agent by the amount end of the month in which such proceeds are received. In the event Borrower at any time or validity times hereafter shall fail to obtain or application maintain any of the policies of insurance required above or to pay any premium in whole or in part relating thereto, Agent, without waiving or releasing any Obligations or Default or Event of any Taxes or Other ChargesDefault hereunder, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time whenor times thereafter (but shall not be obligated to) obtain and maintain such policies of insurance and pay such premiums and take any other action with respect thereto which Agent deems advisable. All sums so disbursed by Agent, including reasonable attorneys' fees, court costs, expenses and other charges relating thereto, shall be payable, on demand, by Borrower to Agent and shall be additional Obligations hereunder secured by the Collateral. Agent reserves the right at any time, upon review of Borrower's risk profile, to require additional forms and limits of insurance to, in the Agent's reasonable judgment of Lenderopinion, the entitlement of such claimant is establishedadequately protect Lenders' interests.
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Sources: Revolving Credit and Security Agreement (Allstate Financial Corp /Va/)
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (providedPROVIDED, howeverHOWEVER, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or 34 application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.
Appears in 1 contract
Sources: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid paid. Borrower shall furnish to Lender receipts for the payment of the Taxes and the Other Charges prior to the date the same shall become delinquent (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 7.3 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien lien or charge whatsoever which may be or become a Lien lien or charge against the its Property, and shall promptly pay for all utility services provided to the its Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) no Default or Event of Default has occurred and remains uncured; (ii) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the applicable Mortgage; (iiiii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iiiiv) neither the no Individual Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled canceled or lost; (ivv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (vvi) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the applicable Individual Property; and (vivii) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.
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hereof. The Borrower will deliver and each Lender irrevocably authorizes the Issuing Bank to honor draws on each Facility Letter of Credit by the beneficiary thereof in accordance with its terms. Any action taken or omitted to be taken by the Issuing Bank under or in connection with any Facility Letter of Credit, if taken or omitted in the absence of willful misconduct or gross negligence, shall not (i) put the Issuing Bank under any resulting liability to Borrower or any Lender, (ii) relieve Borrower of any of its obligations hereunder to the Issuing Bank or the Lenders or (iii) provided that such Lender receipts for payment has not given a notice contemplated by SECTION 3.6(a) that continues in full force and effect, relieve any Lender of its obligations hereunder to the Issuing Bank. In determining whether to pay under any Facility Letter of Credit, the Issuing Bank shall have no obligation relative to the Lenders or Borrower other evidence satisfactory than to Lender confirm that the Taxes and Other Charges any documents required to be delivered under such Letter of Credit appear to have been so paid or are not then delinquent no later than ten (10) days prior delivered, and that they appear to comply on their face with the date on which requirements of such Letter of Credit. Without limiting the Taxes and/or Other Charges would otherwise be delinquent if not paid (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy generality of the receipt evidencing foregoing, the payment thereof Agent and the Issuing Bank shall be entitled to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Propertyrely, and shall promptly pay for be fully protected in relying upon, any Facility Letter of Credit, draft, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel, independent accountants and other experts selected by the Agent or the Issuing Bank. The Agent and the Issuing Bank shall in all utility services provided to cases be fully protected by the Property. After prior written notice to LenderLenders in acting, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Chargesrefraining from acting, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with a request of the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder Majority Lenders, and such proceeding request and any action taken or failure to act pursuant thereto shall be conducted in accordance with binding upon the Lenders and all applicable statutes, laws and ordinances; (iii) neither future holders of the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedNotes.
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hereof. Borrower will deliver and/or Security Guarantor shall furnish to Lender Agent receipts for the payment or other evidence satisfactory to Lender that of the Taxes and the Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (same shall become delinquent; provided, however, that neither Borrower nor Security Guarantor is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender Agent pursuant to Section 7.2 6.2 hereof). If Neither Borrower pays nor Security Guarantor shall permit or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged discharge any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to LenderAgent, BorrowerBorrower and/or Security Guarantor, in each case at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other ChargesCharges or any workers’, mechanics’ or other similar Liens with respect to the Property, provided that (i) Borrower is permitted to do so under the provisions no Default or Event of any mortgage or deed of trust superior in lien to the MortgageDefault has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the any Individual Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled canceled or lost; (iv) Borrower and/or Security Guarantor shall promptly upon final determination thereof pay the amount of any such Taxes or Other ChargesCharges or other amounts giving rise to such a Lien, together with all costs, interest and penalties which may be payable in connection therewith; (v) if such contest relates to Taxes or Other Charges, such proceeding shall suspend the collection of such contested Taxes or Other Charges from the applicable Individual Property; and (vi) Borrower and/or Security Guarantor shall furnish such deposit with Agent cash, or other security as may be required approved by Agent, in an amount equal to one hundred ten percent (110%) of the proceeding, contested amount (less any amount being held as Reserve Funds for such Taxes or as may be reasonably requested by LenderOther Charges), to insure the payment of any such Taxes or Other ChargesCharges or other amounts giving rise to such Lien, together with all interest and penalties thereon. Lender Agent may pay over any such cash deposit or part thereof other security held by Lender Agent to the claimant entitled thereto at any time when, in the reasonable judgment of LenderAgent, the entitlement of such claimant is established.
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hereof. Borrower will deliver shall not suffer and shall promptly cause to be ----------- paid and discharged any lien or charge whatsoever which may be or become a lien or charge against any of the Properties (subject to Borrower's right to contest Taxes and Other Charges in accordance with this Section 5.1(b)), and shall --------------- promptly pay for all utility services provided to the Properties. Borrower shall furnish to Lender receipts for the payment or other evidence satisfactory to Lender that of the Taxes and the Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be same shall become delinquent if not paid (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 7.3 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, ----------- Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) no Event of Default has occurred and remains uncured, (ii) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to affecting any of the Mortgage; Properties, (iiiii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; , (iiiiv) neither the no Individual Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled canceled or lost; , and (ivv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; . In addition, if the Taxes or Other Charges are not paid in full when the Borrower commences such contest, then the following shall apply: (vA) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the applicable Individual Property; , and (viB) Borrower shall furnish have furnished such security as may be required in the proceeding, or as may be reasonably requested by LenderLender or sufficient funds are on deposit in the Tax and Insurance Escrow Fund to pay any such Taxes or Other Charges pursuant to Section 7.3, to insure ----------- the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedestablished after Borrower's appeals have been exhausted.
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hereof. Borrower will deliver The Buyer shall not (i) settle, negotiate or otherwise compromise any of the Transferred Accounts Receivable without written authorization with respect thereto from the Seller, or (ii) suggest to Lender receipts for payment or influence any account debtor of the Seller or offer any incentive to any account debtor of the Seller or otherwise take any action that would or does cause any such account debtor to fail to pay an amount due the Seller, or pay an amount due the Buyer in lieu thereof. During the period commencing as of the one hundred twentieth (120th) day following the date of this Agreement (the "Record Date") and ending fifteen (15) days thereafter (the "Option Period"), the Buyer may, but shall not be obligated to, notify the Seller in writing (the "Notice") as to which of the Transferred Accounts Receivable are outstanding as of the Record Date (the "Delinquent Receivables"). Any such Notice shall include therewith an assignment of the Delinquent Receivables to the Seller in such form as the Seller may reasonably request, including, without limitation, representations and warranties to the effect that such Delinquent Receivables are being sold to the Seller free and clear of any and all Liens, and that the Buyer has received no payments on account of any such Delinquent Receivable, among other evidence things, together with documentation duly executed by the Bank, in form and substance satisfactory to Lender that the Taxes Seller, in its sole discretion, which shall be final, conclusive and Other Charges have been so paid or are not then delinquent no later than ten binding, releasing any and all Liens of the Bank with respect to such Delinquent Receivables (10collectively, the "Assignment Documents"). On the fifteenth (15th) days prior day following the Seller's receipt of the Notice (the "Section 9.1 Adjustment Date"), together with the Assignment Documents, a credit shall be applied in favor of the Buyer as set forth in Section 9.1(b) in an amount equal to the date on which amount of each of such Delinquent Receivables (in the Taxes and/or Other Charges would otherwise be delinquent if not paid (providedaggregate, howeverthe "Delinquent Receivables Amount"). Notwithstanding anything contained herein, that Borrower is not required the Seller shall have the right to furnish such receipts for payment of Taxes collect the Delinquent Receivables. Following the Notice, in the event that such Taxes have been paid by Lender pursuant the Buyer receives any check from an account debtor who is named on the list of Delinquent Receivables, and made payable to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy the order of the Seller, the Buyer shall deliver same to Seller within one (1) day of the Buyer's receipt evidencing thereof, whether or not paid on account of such Delinquent Receivables. In the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided event that the Taxes are being Buyer receives any monies from any account debtor who is named on the list of Delinquent Receivables, whether or not paid pursuant to Section 7.2on account of such Delinquent Receivables, such amounts shall be held in trust for the Seller by the Buyer in a segregated bank account maintained by the Buyer for such purpose. Upon written request Promptly (but in no event beyond five (5) days) following receipt of Borrowersuch payment, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender the Buyer shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided deliver same to the PropertySeller. After prior written notice to Lender, Borrower, at its own expense, may contest Any amount received by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien Seller shall be applied to the Mortgage; (ii) such proceeding shall be permitted under and be conducted Delinquent Receivables in accordance with the provisions of any other instrument to Seller's sole discretion, which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted final, conclusive and binding. Notwithstanding anything contained herein, the Seller shall have no obligations under this Section 9.1 unless and until the Buyer has complied with each of its obligations hereunder.
(b) In the event that a credit is to be applied in favor of the Buyer pursuant to the terms of Section 9.1(a), the Delinquent Receivables Amount to be so credited shall be deducted pro rata from the payments then outstanding under Note 1, such that the amount to be applied as a credit in accordance with all applicable statutesSection 9.1(a) shall be divided by the number of payments which remain outstanding under Note 1 as of the Section
9.1 Adjustment Date, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will quotient so obtained shall be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges deducted from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the each payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is establishedthen outstanding under Note 1.
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hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes Taxes, Other Charges and Other Common Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes Taxes, Other Charges and/or Other Common Charges would otherwise be delinquent if not paid paid. Borrower shall furnish to Lender receipts for the payment of the Taxes, Other Charges and Common Charges prior to the date the same shall become delinquent (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to LenderExcept for Permitted Encumbrances, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become became a Lien or charge against the PropertyProperties, and shall promptly pay for all utility services provided to the PropertyProperties. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes Taxes, Other Charges or Other ChargesCommon Charges or any other Lien or charge that may become a Lien or charge against an Individual Property, provided that (i) Borrower is permitted to do so under the provisions no Event of any mortgage or deed of trust superior in lien to the MortgageDefault has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.be
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