Borrower Defaults. (a) Administrative Bank shall give the Banks notice of any Default of which Administrative Bank has knowledge or notice. Except with respect to (i) the nonpayment of principal, interest or any fees that are due and payable under any of the Loan Documents, (ii) Defaults with respect to which Administrative Bank has actually sent written notice of to the Borrower and (iii) Defaults with respect to which Administrative Bank has entered into discussions with a Borrower, Administrative Bank shall be deemed to not have knowledge or notice of the occurrence of a Default unless Administrative Bank has received notice from a Bank or a Borrower specifying such Default and stating that such notice is a “Notice of Default”. If Administrative Bank has such knowledge or receives such a notice from a Borrower or a Bank in accordance with the immediately preceding sentence with respect to the occurrence of a Default, Administrative Bank shall give prompt notice thereof to the Banks. Within ten (10) days of delivery of such notice of Default from Administrative Bank to the Banks (or such shorter period of time as Administrative Bank determines is necessary), in the event Administrative Bank wishes to take any action requiring the consent of Required Banks or all of the Banks (as provided in this Agreement), Administrative Bank and the Banks shall consult with each other to determine a proposed course of action. Administrative Bank shall (subject to Section 10.7) take such action with respect to such Default as shall be directed by the Required Banks or the Banks, as applicable; provided that (i) except as otherwise provided in Section 10.9 hereof, Administrative Bank may (but shall not be obligated to) take such action, or refrain from taking such action (including decisions (a) to make Protective Advances (subject to the limitation set forth in the definition thereof) that Administrative Bank determines reasonably are necessary to protect or maintain the Project and (b) to foreclose on the Project or exercise any other remedy), with respect to such Default as it shall deem advisable in the interest of the Banks and (ii) no actions approved by the Required Banks shall violate the Loan Documents or any Governmental Requirements. (b) Each of the Banks acknowledges and agrees that no individual Bank may separately enforce or exercise any of the provisions of any of the Loan Documents (including, without limitation, the Notes) other than through Administrative Bank. Administrative Bank shall advise the Banks of all actions which Administrative Bank takes in accordance with the provisions of this Section 10.3. Notwithstanding the foregoing, if the Required Banks shall at any time direct that a different or additional remedial action be taken from that already undertaken by Administrative Bank, including the commencement of foreclosure proceedings, such different or additional remedial action shall be taken in lieu of or in addition to, the prosecution of such action taken by Administrative Bank; provided that all actions already taken by Administrative Bank pursuant to Section 10.3(a) shall be valid and binding on each Bank. (c) All money received from any enforcement actions, including the proceeds of a foreclosure sale of the Project, shall be applied: first, to the payment or reimbursement of Administrative Bank for expenses incurred in accordance with the provisions of Sections 10.3(d), (e) and (f) and 10.5 and to the payment of any fees and charges then due to Administrative Bank to the extent not paid by Borrowers; second, to the Banks for expenses incurred in accordance with the provisions of Section 10.3(d), (e) and (f) and 10.5; third, to the payment or reimbursement of the Banks for any advances made pursuant to Section 10.3(d); fourth, pari passu to the Banks in accordance with their pro rata percentage of Obligations held by them (excluding those items set forth in first through third and fifth of this subsection (c)), unless an Unpaid Amount is owed pursuant to Section 10.11, in which event such Unpaid Amount shall be deducted from the portion of such proceeds of the Defaulting Bank and be applied to payment of such Unpaid Amount to the Special Advance Bank; and Fifth to repayment of amounts due under any Bank-Provided Hedging Transaction. (d) All losses with respect to interest (including interest at the Default Rate) and other sums payable pursuant to the Notes or incurred in connection with the Loans, the enforcement thereof or the realization of the security therefor, shall be borne by the Banks in accordance with their respective Percentage. The Banks shall promptly, upon request, remit to Administrative Bank their respective Percentage of (i) any expenses incurred by Administrative Bank in connection with any Default to the extent any expenses have not been paid by the Borrower, (ii) any advances made to pay taxes or insurance or otherwise to preserve the lien of the Loan Documents or to preserve and protect the Project whether or not the amount necessary to be advanced for such purposes exceeds the amount of the respective Commitments of the Banks, (iii) any other expenses incurred in connection with the enforcement of the Loan Documents, and (iv) any expenses incurred in connection with the consummation of the Loans not paid or provided for by the Borrowers. To the extent any such advances are recovered in connection with the enforcement of the Mortgage or the other Loan Documents, each Bank shall be paid its Percentage of such recovery after deduction of the expenses of Administrative Bank. (e) If any action is brought to collect on the Notes, foreclose under the Mortgage, or enforce any of the Loan Documents, such action shall (to the extent permitted under applicable law and the decisions of the court in which such action is brought) be an action brought by Administrative Bank and the Banks, collectively, to collect on all or a portion of the Notes or enforce the Loan Documents, and counsel selected by Administrative Bank shall prosecute any such action on behalf of Administrative Bank and the Banks, and Administrative Bank and the Banks shall consult and cooperate with each other in the prosecution thereof. The costs and expenses of foreclosure, to the extent not paid by Borrowers (in accordance with Section 9.2) within ten (10) days after Administrative Bank’s demand therefor, will be borne by the Banks in accordance with their respective Percentages. (f) If title is acquired to the Project after a foreclosure sale, nonjudicial foreclosure or by a deed in lieu of foreclosure, title shall be held by Administrative Bank in its own name in trust for the Banks or, at Administrative Bank’s election, in the name of a wholly owned subsidiary of Administrative Bank on behalf of the Banks. (g) If Administrative Bank (or its subsidiary) acquires title to the Project or is entitled to possession of the Project during or after the foreclosure, all material decisions with respect to the possession, ownership, development, construction, control, operation, leasing, management and sale of the Project shall be made by Required Banks. All income or other money received after so acquiring title to or taking possession of the Project with respect to the Project, including income from the operation and management of the Project and the proceeds of a sale of the Project, shall be applied: First, to the payment or reimbursement of Administrative Bank for expenses incurred in accordance with the provisions of this Article 10 and to the payment of any fees and charges then due agent to the extent not paid by the Borrowers (in accordance with Section 9.2); Second, to the payment of operating expenses with respect to the Project; Third, to the establishment of reasonable reserves for the operation of the Project as determined by Administrative Bank; Fourth, to the payment or reimbursement of the Banks for any advances made pursuant to Section 10.3(d); Fifth to fund any capital improvement, leasing and other reserves established at the discretion of Administrative Bank; and Sixth, pari passu to the Banks in accordance with their pro rata percentage of Obligations held by them (excluding those items set forth in First through Fifth and Seventh of this subsection (g), unless an Unpaid Amount is owed pursuant to Section 10.11, in which event such Unpaid Amount shall be deducted from the portion of such proceeds of the Defaulting Bank and be applied to payment of such Unpaid Amount to the Special Advance Bank (as defined in Section 10.11), and Seventh to repayment of amounts due under any Bank-Provided Hedge Transaction.
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Sources: Loan Agreement (OVERSTOCK.COM, Inc)
Borrower Defaults. (a) Administrative Bank Agent shall give the Banks Lenders notice of any material Default of which Administrative Bank Agent has knowledge or notice. Except with respect to (i) the nonpayment of principal, interest or any fees that are due and payable under any of the Loan Documents, (ii) Defaults with respect to which Administrative Bank Agent has actually sent written notice of to the Borrower and (iii) Defaults with respect to which Administrative Bank Agent has entered into discussions with a the Borrower, Administrative Bank Agent shall be deemed to not have knowledge or notice of the occurrence of a Default unless Administrative Bank Agent has received notice from a Bank Lender or a the Borrower specifying such Default and stating that such notice is a “"Notice of Default”". If Administrative Bank Agent has such knowledge or receives such a notice from a the Borrower or a Bank Lender in accordance with the immediately preceding sentence with respect to the occurrence of a material Default, Administrative Bank Agent shall give prompt notice thereof to the BanksLenders. Within ten (10) days of delivery of such notice of Default from Administrative Bank Agent to the Banks Lenders (or such shorter period of time as Administrative Bank Agent determines is necessary), in the event Administrative Bank wishes to take any action requiring the consent of Required Banks or all of the Banks (as provided in this Agreement), Administrative Bank Agent and the Banks Lenders shall consult with each other to determine a proposed course of action. Administrative Bank Agent shall (subject to Section 10.78.07) take such action with respect to such Default as shall be directed by the Required Banks or the Banks, as applicableLenders; provided that (i) except as otherwise provided in Section 10.9 hereofunless and until Administrative Agent shall have received such directions, Administrative Bank Agent may (but shall not be obligated to) take such action, or refrain from taking such action (including decisions (aA) to make Protective Advances (subject to the limitation set forth in the definition thereof) that Administrative Bank Agent determines reasonably are necessary to protect or maintain the Project Property and (bB) to foreclose on the Project Property or exercise any other remedy), with respect to such Default as it shall deem advisable in the interest of the Banks Lenders except to the extent that this Agreement expressly requires that such action be taken, or not be taken, only with the consent or upon the authorization of all of the Lenders and (ii) no actions approved by the Required Banks Lenders shall violate the Loan Documents or any Governmental RequirementsRequirement.
(b) Each of the Banks Lenders acknowledges and agrees that no individual Bank Lender may separately enforce or exercise any of the provisions of any of the Loan Documents (including, without limitation, the Notes) other than through Administrative BankAgent. Administrative Bank Agent shall advise the Banks Lenders of all material actions which Administrative Bank Agent takes in accordance with the provisions of this Section 10.3803. Notwithstanding the foregoing, if the Required Banks Lenders shall at any time direct that a different or additional remedial action be taken from that already undertaken by Administrative BankAgent, including the commencement of foreclosure proceedings, such different or additional remedial action shall be taken in lieu of or in addition to, the prosecution of such action taken by Administrative BankAgent; provided that all actions already taken by Administrative Bank Agent pursuant to Section 10.3(a8.03(a) shall be valid and binding on each BankLender.
(c) All money (other than money subject to the provisions of Section 8.03(i) received from any enforcement actions, including the proceeds of a foreclosure sale of the ProjectProperty, shall be applied: firstFirst, to the payment or reimbursement of Administrative Bank Agent for expenses incurred in accordance with the provisions of Sections 10.3(d8.03(d), (e) and (f) and 10.5 8.05 and to the payment of any fees and charges then due to Administrative Bank agent to the extent not paid by Borrowersthe Borrower; secondSecond, to the Banks Lenders for expenses incurred in accordance with the provisions of Section 10.3(d8.03(d), (e) and (f) and 10.58.05; thirdThird, to the payment or reimbursement of the Banks Lenders for any advances made pursuant to Section 10.3(d8.03(d); fourthand Fourth, pari passu to the Banks Lenders in accordance with their pro rata percentage of Obligations held by them (excluding those items set forth in first through third and fifth of this subsection (c))respective Proportionate Shares, unless an Unpaid Amount is owed pursuant to Section 10.118.11, in which event such Unpaid Amount shall be deducted from the portion of such proceeds of the Defaulting Bank Lender and be applied to payment of such Unpaid Amount to the Special Advance Bank; and Fifth to repayment of amounts due under any Bank-Provided Hedging TransactionLender.
(d) All losses with respect to interest (including interest at the Default Rate) and other sums payable pursuant to the Notes or incurred in connection with the Loans, the enforcement thereof or the realization of the security therefor, shall be borne by the Banks Lenders in accordance with their respective PercentageProportionate Shares. The Banks Lenders shall promptly, upon request, remit to Administrative Bank Agent their respective Percentage Proportionate Shares of (i) any expenses incurred by Administrative Bank Agent in connection with any Default to the extent any expenses have not been paid by the Borrower, (ii) any advances made to pay taxes or insurance or otherwise to preserve the lien of the Loan Documents or to preserve and protect the Project Property or made to effect the completion of the Improvements to be constructed pursuant to this Agreement whether or not the amount necessary to be advanced for such purposes exceeds the amount of the respective Commitments of the BanksLenders, (iii) any other expenses incurred in connection with the enforcement of the Security Instrument or other Loan Documents, and (iv) any expenses incurred in connection with the consummation of the Loans not paid or provided for by the BorrowersBorrower. To the extent any such advances are recovered in connection with the enforcement of the Mortgage Security Instrument or the other Loan Documents, each Bank Lender shall be paid its Percentage Proportionate Share of such recovery after deduction of the expenses of Administrative BankAgent.
(e) If any action is brought to collect on the Notes, foreclose under the MortgageSecurity Instrument, or enforce any of the Loan Documents, such action shall (to the extent permitted under applicable law and the decisions of the court in which such action is brought) be an action brought by Administrative Bank Agent and the BanksLenders, collectively, to collect on all or a portion of the Notes or enforce the Loan Documents, and counsel selected by Administrative Bank Agent shall prosecute any such action on behalf of Administrative Bank Agent and the BanksLenders, and Administrative Bank Agent and the Banks Lenders shall consult and cooperate with each other in the prosecution thereof. The costs and expenses of foreclosure, to the extent not paid by Borrowers (in accordance with Section 9.2) Borrower within ten (10) days after Administrative Bank’s Agent's demand therefor, will be borne by the Banks Lenders in accordance with their respective PercentagesProportionate Shares.
(f) If title is acquired to the Project Property after a foreclosure sale, nonjudicial foreclosure or by a deed in lieu of foreclosure, title shall be held by Administrative Bank Agent in its own name in trust for the Banks Lenders or, at Administrative Bank’s Agent's election, in the name of a wholly owned subsidiary of Administrative Bank Agent on behalf of the BanksLenders.
(g) If Administrative Bank Agent (or its subsidiary) acquires title to the Project Property or is entitled to possession of the Project Property during or after the foreclosure, all material decisions with respect to the possession, ownership, development, construction, control, operation, leasing, management and sale of the Project Property shall be made by Required BanksAdministrative Agent. All income or other money received after so acquiring title to or taking possession of the Project Property with respect to the ProjectProperty, including income from the operation and management of the Project Property and the proceeds of a sale of the ProjectProperty, shall be applied: First, to the payment or reimbursement of Administrative Bank Agent for expenses incurred in accordance with the provisions of this Article 10 Section 9 and to the payment of any fees and charges then due agent to the extent not paid by the Borrowers (in accordance with Section 9.2)Borrower; Second, to the payment of operating expenses with respect to the ProjectProperty; Third, to the establishment of reasonable reserves for the operation of the Project as determined by Administrative BankProperty; Fourth, to the payment or reimbursement of the Banks Lenders for any advances made pursuant to Section 10.3(d8.03(d); Fifth to fund any capital improvement, leasing and other reserves established at the discretion of Administrative BankAgent; and Sixth, pari passu to the Banks Lenders in accordance with their pro rata percentage of Obligations held by them (excluding those items set forth in First through Fifth and Seventh of this subsection (g)respective Proportionate Shares, unless an Unpaid Amount is owed pursuant to Section 10.118.11, in which event such Unpaid Amount shall be deducted from the portion of such proceeds of the Defaulting Bank Lender and be applied to payment of such Unpaid Amount to the Special Advance Bank (as defined in Section 10.11), and Seventh to repayment of amounts due under any Bank-Provided Hedge TransactionLender.
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Borrower Defaults. (a) Administrative Bank Agent shall give the Banks Lenders notice of any material Default of which Administrative Bank Agent has knowledge or notice. Except with respect to (i) the nonpayment of principal, interest or any fees that are due and payable under any of the Loan Documents, (ii) Defaults with respect to which Administrative Bank Agent has actually sent written notice of to the Borrower and (iii) Defaults with respect to which Administrative Bank Agent has entered into discussions with a the Borrower, Administrative Bank Agent shall be deemed to not have knowledge or notice of the occurrence of a Default unless Administrative Bank Agent has received notice from a Bank Lender or a the Borrower specifying such Default and stating that such notice is a “"Notice of Default”". If Administrative Bank Agent has such knowledge or receives such a notice from a the Borrower or a Bank Lender in accordance with the immediately preceding sentence with respect to the occurrence of a material Default, Administrative Bank Agent shall give prompt notice thereof to the BanksLenders. Within ten (10) days of delivery of such notice of Default from Administrative Bank Agent to the Banks Lenders (or such shorter period of time as Administrative Bank Agent determines is necessary), in the event Administrative Bank wishes to take any action requiring the consent of Required Banks or all of the Banks (as provided in this Agreement), Administrative Bank Agent and the Banks Lenders shall consult with each other to determine a proposed course of action. Administrative Bank Agent shall (subject to Section 10.713.07) take such action with respect to such Default as shall be directed by the Required Banks or the Banks, as applicableLenders; provided that (i) except as otherwise provided in Section 10.9 hereofunless and until Administrative Agent shall have received such directions, Administrative Bank Agent may (but shall not be obligated to) take such action, or refrain from taking such action (including decisions (aA) to make Protective Advances (subject to the limitation set forth in the definition thereof) that Administrative Bank Agent determines reasonably are necessary to protect or maintain the Project and (bB) to foreclose on the Project or exercise any other remedy), with respect to such Default as it shall deem advisable in the interest of the Banks Lenders except to the extent that this Agreement expressly requires that such action be taken, or not be taken, only with the consent or upon the authorization of all of the Lenders and (ii) no actions approved by the Required Banks Lenders shall violate the Loan Documents or any Governmental Requirements.
(b) Requirement. Each of the Banks Lenders acknowledges and agrees that no individual Bank Lender may separately enforce or exercise any of the provisions of any of the Loan Documents (including, without limitation, the Notes) other than through Administrative BankAgent. Administrative Bank Agent shall advise the Banks Lenders of all material actions which Administrative Bank Agent takes in accordance with the provisions of this Section 10.313.03. Notwithstanding the foregoing, if the Required Banks Lenders shall at any time direct that a different or additional remedial action be taken from that already undertaken by Administrative BankAgent, including the commencement of foreclosure proceedings, such different or additional remedial action shall be taken in lieu of or in addition to, the prosecution of such action taken by Administrative BankAgent; provided that all actions already taken by Administrative Bank Agent pursuant to Section 10.3(a13.03(a) shall be valid and binding on each Bank.
(c) Lender. All money (other than money subject to the provisions of Section 13.03(g)) received from any enforcement actions, including the proceeds of a foreclosure sale of the Project, shall be applied: firstFirst, to the payment or reimbursement of Administrative Bank Agent for expenses incurred in accordance with the provisions of Sections 10.3(d13.03(d), (e) and (f) and 10.5 13.05 and to the payment of any fees and charges then due to Administrative Bank agent to the extent not paid by Borrowersthe Borrower; secondSecond, to the Banks Lenders for expenses incurred in accordance with the provisions of Section 10.3(d13.03(d), (e) and (f) ( and 10.513.05; thirdThird, to the payment or reimbursement of the Banks Lenders for any advances made pursuant to Section 10.3(d13.03(d); fourthand Fourth, pari passu to the Banks Lenders in accordance with their pro rata percentage of Obligations held by them (excluding those items set forth in first through third and fifth of this subsection (c))respective Proportionate Shares, unless an Unpaid Amount is owed pursuant to Section 10.1113.11, in which event such Unpaid Amount shall be deducted from the portion of such proceeds of the Defaulting Bank Lender and be applied to payment of such Unpaid Amount to the Special Advance Bank; and Fifth to repayment of amounts due under any Bank-Provided Hedging Transaction.
(d) Lender. All losses with respect to interest (including interest at the Default Rate) and other sums payable pursuant to the Notes or incurred in connection with the Loans, the enforcement thereof or the realization of the security therefor, shall be borne by the Banks Lenders in accordance with their respective PercentageProportionate Shares. The Banks Lenders shall promptly, upon request, remit to Administrative Bank Agent their respective Percentage Proportionate Shares of (i) any expenses incurred by Administrative Bank Agent in connection with any Default to the extent any expenses have not been paid by the Borrower, (ii) any advances made to pay taxes or insurance or otherwise to preserve the lien of the Loan Documents or to preserve and protect the Project or made to effect the completion of the Improvements to be constructed pursuant to this Agreement whether or not the amount necessary to be advanced for such purposes exceeds the amount of the respective Commitments of the BanksLenders, (iii) any other expenses incurred in connection with the enforcement of the Security Instrument or other Loan Documents, and (iv) any expenses incurred in connection with the consummation of the Loans not paid or provided for by the BorrowersBorrower. To the extent any such advances are recovered in connection with the enforcement of the Mortgage Security Instrument or the other Loan Documents, each Bank Lender shall be paid its Percentage Proportionate Share of such recovery after deduction of the expenses of Administrative Bank.
(e) Agent. If any action is brought to collect on the Notes, foreclose under the MortgageSecurity Instrument, or enforce any of the Loan Documents, such action shall (to the extent permitted under applicable law and the decisions of the court in which such action is brought) be an action brought by Administrative Bank Agent and the BanksLenders, collectively, to collect on all or a portion of the Notes or enforce the Loan Documents, and counsel selected by Administrative Bank Agent shall prosecute any such action on behalf of Administrative Bank Agent and the BanksLenders, and Administrative Bank Agent and the Banks Lenders shall consult and cooperate with each other in the prosecution thereof. The costs and expenses of foreclosure, to the extent not paid by Borrowers (in accordance with Section 9.2) Borrower within ten (10) days after Administrative Bank’s Agent's demand therefor, will be borne by the Banks Lenders in accordance with their respective Percentages.
(f) Proportionate Shares. If title is acquired to the Project after a foreclosure sale, nonjudicial foreclosure or by a deed in lieu of foreclosure, title shall be held by Administrative Bank Agent in its own name in trust for the Banks Lenders or, at Administrative Bank’s Agent's election, in the name of a wholly owned subsidiary of Administrative Bank Agent on behalf of the Banks.
(g) Lenders. If Administrative Bank Agent (or its subsidiary) acquires title to the Project or is entitled to possession of the Project during or after the foreclosure, all material decisions with respect to the possession, ownership, development, construction, control, operation, leasing, management and sale of the Project shall be made by Required BanksAdministrative Agent. All income or other money received after so acquiring title to or taking possession of the Project with respect to the Project, including income from the operation and management of the Project and the proceeds of a sale of the Project, shall be applied: First, to the payment or reimbursement of Administrative Bank Agent for expenses incurred in accordance with the provisions of this Article 10 Section 13 and to the payment of any fees and charges then due agent to the extent not paid by the Borrowers (in accordance with Section 9.2)Borrower; Second, to the payment of operating expenses with respect to the Project; Third, to the establishment of reasonable reserves for the operation of the Project as determined by Administrative BankProject; Fourth, to the payment or reimbursement of the Banks Lenders for any advances made pursuant to Section 10.3(d13.03(d); Fifth to fund any capital improvement, leasing and other reserves established at the discretion of Administrative BankAgent; and Sixth, pari passu to the Banks Lenders in accordance with their pro rata percentage of Obligations held by them (excluding those items set forth in First through Fifth and Seventh of this subsection (g)respective Proportionate Shares, unless an Unpaid Amount is owed pursuant to Section 10.1113.11, in which event such Unpaid Amount shall be deducted from the portion of such proceeds of the Defaulting Bank Lender and be applied to payment of such Unpaid Amount to the Special Advance Bank (as defined in Section 10.11), and Seventh to repayment of amounts due under any Bank-Provided Hedge TransactionLender.
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Borrower Defaults. (a) Administrative Bank Agent shall give the Banks Lenders notice of any material Default of which Administrative Bank Agent has knowledge or notice. Except with respect to (i) the nonpayment of principal, interest or any fees that are due and payable under any of the Loan Documents, (ii) Defaults with respect to which Administrative Bank Agent has actually sent written notice of to the Borrower and (iii) Defaults with respect to which Administrative Bank Agent has entered into discussions with a the Borrower, Administrative Bank Agent shall be deemed to not have knowledge or notice of the occurrence of a Default unless Administrative Bank Agent has received notice from a Bank Lender or a the Borrower specifying such Default and stating that such notice is a “"Notice of Default”. ." If Administrative Bank Agent has such knowledge or receives such a notice from a the Borrower or a Bank Lender in accordance with the immediately preceding sentence with respect to the occurrence of a material Default, Administrative Bank Agent shall give prompt notice thereof to the BanksLenders. Within ten (10) days of delivery of such notice of Default from Administrative Bank Agent to the Banks Lenders (or such shorter period of time as Administrative Bank Agent determines is necessary), in the event Administrative Bank wishes to take any action requiring the consent of Required Banks or all of the Banks (as provided in this Agreement), Administrative Bank Agent and the Banks Lenders shall consult with each other to determine a proposed course of action. Administrative Bank Agent shall (subject to Section 10.713.7) take such action with respect to such Default as shall be directed by the Required Banks or the Banks, as applicableLenders; provided that (i) except as otherwise provided in Section 10.9 hereofunless and until Administrative Agent shall have received such directions, Administrative Bank Agent may (but shall not be obligated to) take such action, or refrain from taking such action (including decisions (a1) to make Protective Advances (subject to the limitation set forth in the definition thereof) that Administrative Bank Agent determines reasonably are necessary to protect or maintain the Project and (b2) to foreclose on the Project or exercise any other remedy), with respect to such Default as it shall deem advisable in the interest of the Banks Lenders except to the extent that this Agreement expressly requires that such action be taken, or not be taken, only with the consent or upon the authorization of all of the Lenders and (ii) no actions approved by the Required Banks Lenders shall violate the Loan Documents or any Governmental RequirementsRequirement.
(b) Each of the Banks Lenders acknowledges and agrees that no individual Bank Lender may separately enforce or exercise any of the provisions of any of the Loan Documents (including, without limitation, the Notes) other than through Administrative BankAgent. Administrative Bank Agent shall advise the Banks Lenders of all material actions which Administrative Bank Agent takes in accordance with the provisions of this Section 10.313.3. Notwithstanding the foregoing, if the Required Banks Lenders shall at any time direct that a different or additional remedial action be taken from that already undertaken by Administrative BankAgent, including the commencement of foreclosure proceedings, such different or additional remedial action shall be taken in lieu of or in addition to, the prosecution of such action taken by Administrative BankAgent; provided that all actions already taken by Administrative Bank Agent pursuant to Section 10.3(a13.3(a) shall be valid and binding on each BankLender.
(c) All money (other than money subject to the provisions of Section 13.3(g)) received from any enforcement actions, including the proceeds of a foreclosure sale of the Project, shall be applied: firstFirst, to the payment or reimbursement of Administrative Bank Agent for expenses incurred in accordance with the provisions of Sections 10.3(d13.3(d), (e13.3(e), and 13.3(f) and (f) and 10.5 13.5 and to the payment of any fees and charges then due to Administrative Bank agent to the extent not paid by Borrowersthe Borrower; secondSecond, to the Banks Lenders for expenses incurred in accordance with the provisions of Section 10.3(d13.3(d), (e13.3(e), and 13.3(f) and (f) and 10.513.5; thirdThird, to the payment or reimbursement of the Banks Lenders for any advances made pursuant to Section 10.3(d13.3(d); fourthand Fourth, pari passu to the Banks Lenders in accordance with their pro rata percentage of Obligations held by them (excluding those items set forth in first through third and fifth of this subsection (c))respective Proportionate Shares, unless an Unpaid Amount is owed pursuant to Section 10.1113.11, in which event such Unpaid Amount shall be deducted from the portion of such proceeds of the Defaulting Bank Lender and be applied to payment of such Unpaid Amount to the Special Advance Bank; and Fifth to repayment of amounts due under any Bank-Provided Hedging TransactionLender.
(d) All losses with respect to interest (including interest at the Default Rate) and other sums payable pursuant to the Notes or incurred in connection with the Loans, the enforcement thereof or the realization of the security therefor, shall be borne by the Banks Lenders in accordance with their respective PercentageProportionate Shares. The Banks Lenders shall promptly, upon request, remit to Administrative Bank Agent their respective Percentage Proportionate Shares of (i) any expenses incurred by Administrative Bank Agent in connection with any Default to the extent any expenses have not been paid by the Borrower, (ii) any advances made to pay taxes or insurance or otherwise to preserve the lien of the Loan Documents or to preserve and protect the Project or made to effect the Completion of the Improvements to be constructed pursuant to this Agreement whether or not the amount necessary to be advanced for such purposes exceeds the amount of the respective Commitments of the BanksLenders, (iii) any other expenses incurred in connection with the enforcement of the Security Instrument or other Loan Documents, and (iv) any expenses incurred in connection with the consummation of the Loans not paid or provided for by the BorrowersBorrower. To the extent any such advances are recovered in connection with the enforcement of the Mortgage Security Instrument or the other Loan Documents, each Bank Lender shall be paid its Percentage Proportionate Share of such recovery after deduction of the expenses of Administrative BankAgent.
(e) If any action is brought to collect on the Notes, foreclose under the MortgageSecurity Instrument, or enforce any of the Loan Documents, such action shall (to the extent permitted under applicable law and the decisions of the court in which such action is brought) be an action brought by Administrative Bank Agent and the BanksLenders, collectively, to collect on all or a portion of the Notes or enforce the Loan Documents, and counsel selected by Administrative Bank Agent shall prosecute any such action on behalf of Administrative Bank Agent and the BanksLenders, and Administrative Bank Agent and the Banks Lenders shall consult and cooperate with each other in the prosecution thereof. The costs and expenses of foreclosure, to the extent not paid by Borrowers (in accordance with Section 9.2) Borrower within ten (10) days after Administrative Bank’s Agent's demand therefor, will be borne by the Banks Lenders in accordance with their respective PercentagesProportionate Shares.
(f) If title is acquired to the Project after a foreclosure sale, nonjudicial foreclosure or by a deed in lieu of foreclosure, title shall be held by Administrative Bank Agent in its own name in trust for the Banks Lenders or, at Administrative Bank’s Agent's election, in the name of a wholly owned subsidiary of Administrative Bank Agent on behalf of the BanksLenders.
(g) If Administrative Bank Agent (or its subsidiary) acquires title to the Project or is entitled to possession of the Project during or after the foreclosure, all material decisions with respect to the possession, ownership, development, construction, control, operation, leasing, management and sale of the Project shall be made by Required BanksAdministrative Agent. All income or other money received after so acquiring title to or taking possession of the Project with respect to the Project, including income from the operation and management of the Project and the proceeds of a sale of the Project, shall be applied: First, to the payment or reimbursement of Administrative Bank Agent for expenses incurred in accordance with the provisions of this Article 10 XIII and to the payment of any fees and charges then due agent to the extent not paid by the Borrowers (in accordance with Section 9.2)Borrower; Second, to the payment of operating expenses with respect to the Project; Third, to the establishment of reasonable reserves for the operation of the Project as determined by Administrative BankProject; Fourth, to the payment or reimbursement of the Banks Lenders for any advances made pursuant to Section 10.3(d13.3(d); Fifth to fund any capital improvement, leasing and other reserves established at the discretion of Administrative BankAgent; and Sixth, pari passu to the Banks Lenders in accordance with their pro rata percentage of Obligations held by them (excluding those items set forth in First through Fifth and Seventh of this subsection (g)respective Proportionate Shares, unless an Unpaid Amount is owed pursuant to Section 10.1113.11, in which event such Unpaid Amount shall be deducted from the portion of such proceeds of the Defaulting Bank Lender and be applied to payment of such Unpaid Amount to the Special Advance Bank (as defined in Section 10.11), and Seventh to repayment of amounts due under any Bank-Provided Hedge TransactionLender.
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Borrower Defaults. (a) Administrative Bank Agent shall give the Banks Lenders notice of any material Default of which Administrative Bank Agent has knowledge or notice. Except with respect to (i) the nonpayment of principal, interest or any fees that are due and payable under any of the Loan Documents, (ii) Defaults with respect to which Administrative Bank Agent has actually sent written notice of to the Borrower and (iii) Defaults with respect to which Administrative Bank Agent has entered into discussions with a the Borrower, Administrative Bank Agent shall be deemed to not have knowledge or notice of the occurrence of a Default unless Administrative Bank Agent has received notice from a Bank Lender or a the Borrower specifying such Default and stating that such notice is a “"Notice of Default”". If Administrative Bank Agent has such knowledge or receives such a notice from a the Borrower or a Bank Lender in accordance with the immediately preceding sentence with respect to the occurrence of a material Default, Administrative Bank Agent shall give prompt notice thereof to the BanksLenders. Within ten (10) days of delivery of such notice of Default from Administrative Bank Agent to the Banks Lenders (or such shorter period of time as Administrative Bank Agent determines is necessary), in the event Administrative Bank wishes to take any action requiring the consent of Required Banks or all of the Banks (as provided in this Agreement), Administrative Bank Agent and the Banks Lenders shall consult with each other to determine a proposed course of action. Administrative Bank Agent shall (subject to Section 10.713.07) take such action with respect to such Default as shall be directed by the Required Banks or the Banks, as applicableLenders; provided that (i) except as otherwise provided in Section 10.9 hereofunless and until Administrative Agent shall have received such directions, Administrative Bank Agent may (but shall not be obligated to) take such action, or refrain from taking such action (including decisions (a1) to make Protective Advances (subject to the limitation set forth in the definition thereof) that Administrative Bank Agent determines reasonably are necessary to protect or maintain the Project and (b2) to foreclose on the Project or exercise any other remedy), with respect to such Default as it shall deem advisable in the interest of the Banks Lenders except to the extent that this Agreement expressly requires that such action be taken, or not be taken, only with the consent or upon the authorization of all of the Lenders and (ii) no actions approved by the Required Banks Lenders shall violate the Loan Documents or any Governmental Requirements.
(b) Requirement. Each of the Banks Lenders acknowledges and agrees that no individual Bank Lender may separately enforce or exercise any of the provisions of any of the Loan Documents (including, without limitation, the Notes) other than through Administrative BankAgent. Administrative Bank Agent shall advise the Banks Lenders of all material actions which Administrative Bank Agent takes in accordance with the provisions of this Section 10.313.03. Notwithstanding the foregoing, if the Required Banks Lenders shall at any time direct that a different or additional remedial action be taken from that already undertaken by Administrative BankAgent, including the commencement of foreclosure proceedings, such different or additional remedial action shall be taken in lieu of or in addition to, the prosecution of such action taken by Administrative BankAgent; provided that all actions already taken by Administrative Bank Agent pursuant to Section 10.3(a13.03(a) shall be valid and binding on each Bank.
(c) Lender. All money (other than money subject to the provisions of Section 13.03(g)) received from any enforcement actions, including the proceeds of a foreclosure sale of the Project, shall be applied: firstFirst, to the payment or reimbursement of Administrative Bank Agent for expenses incurred in accordance with the provisions of Sections 10.3(d13.03(d), (e13.03(e), and 13.03(f) and (f) and 10.5 13.05 and to the payment of any fees and charges then due to Administrative Bank agent to the extent not paid by Borrowersthe Borrower; secondSecond, to the Banks Lenders for expenses incurred in accordance with the provisions of Section 10.3(d13.03(d), (e13.03(e), and 13.03(f) and (f) and 10.513.05; thirdThird, to the payment or reimbursement of the Banks Lenders for any advances made pursuant to Section 10.3(d13.03(d); fourthand Fourth, pari passu to the Banks Lenders in accordance with their pro rata percentage of Obligations held by them (excluding those items set forth in first through third and fifth of this subsection (c))respective Proportionate Shares, unless an Unpaid Amount is owed pursuant to Section 10.1113.11, in which event such Unpaid Amount shall be deducted from the portion of such proceeds of the Defaulting Bank Lender and be applied to payment of such Unpaid Amount to the Special Advance Bank; and Fifth to repayment of amounts due under any Bank-Provided Hedging Transaction.
(d) Lender. All losses with respect to interest (including interest at the Default Rate) and other sums payable pursuant to the Notes or incurred in connection with the Loans, the enforcement thereof or the realization of the security therefor, shall be borne by the Banks Lenders in accordance with their respective PercentageProportionate Shares. The Banks Lenders shall promptly, upon request, remit to Administrative Bank Agent their respective Percentage Proportionate Shares of (i) any expenses incurred by Administrative Bank Agent in connection with any Default to the extent any expenses have not been paid by the Borrower, (ii) any advances made to pay taxes or insurance or otherwise to preserve the lien of the Loan Documents or to preserve and protect the Project or made to effect the Completion of the Improvements to be constructed pursuant to this Agreement whether or not the amount necessary to be advanced for such purposes exceeds the amount of the respective Commitments of the BanksLenders, (iii) any other expenses incurred in connection with the enforcement of the Security Instrument or other Loan Documents, and (iv) any expenses incurred in connection with the consummation of the Loans not paid or provided for by the BorrowersBorrower. To the extent any such advances are recovered in connection with the enforcement of the Mortgage Security Instrument or the other Loan Documents, each Bank Lender shall be paid its Percentage Proportionate Share of such recovery after deduction of the expenses of Administrative Bank.
(e) Agent. If any action is brought to collect on the Notes, foreclose under the MortgageSecurity Instrument, or enforce any of the Loan Documents, such action shall (to the extent permitted under applicable law and the decisions of the court in which such action is brought) be an action brought by Administrative Bank Agent and the BanksLenders, collectively, to collect on all or a portion of the Notes or enforce the Loan Documents, and counsel selected by Administrative Bank Agent shall prosecute any such action on behalf of Administrative Bank Agent and the BanksLenders, and Administrative Bank Agent and the Banks Lenders shall consult and cooperate with each other in the prosecution thereof. The costs and expenses of foreclosure, to the extent not paid by Borrowers (in accordance with Section 9.2) Borrower within ten (10) days after Administrative Bank’s Agent's demand therefor, will be borne by the Banks Lenders in accordance with their respective Percentages.
(f) Proportionate Shares. If title is acquired to the Project after a foreclosure sale, nonjudicial foreclosure or by a deed in lieu of foreclosure, title shall be held by Administrative Bank Agent in its own name in trust for the Banks Lenders or, at Administrative Bank’s Agent's election, in the name of a wholly owned subsidiary of Administrative Bank Agent on behalf of the Banks.
(g) Lenders. If Administrative Bank Agent (or its subsidiary) acquires title to the Project or is entitled to possession of the Project during or after the foreclosure, all material decisions with respect to the possession, ownership, development, construction, control, operation, leasing, management and sale of the Project shall be made by Required BanksAdministrative Agent. All income or other money received after so acquiring title to or taking possession of the Project with respect to the Project, including income from the operation and management of the Project and the proceeds of a sale of the Project, shall be applied: First, to the payment or reimbursement of Administrative Bank Agent for expenses incurred in accordance with the provisions of this Article 10 XIII and to the payment of any fees and charges then due agent to the extent not paid by the Borrowers (in accordance with Section 9.2)Borrower; Second, to the payment of operating expenses with respect to the Project; Third, to the establishment of reasonable reserves for the operation of the Project as determined by Administrative BankProject; Fourth, to the payment or reimbursement of the Banks Lenders for any advances made pursuant to Section 10.3(d13.03(d); Fifth to fund any capital improvement, leasing and other reserves established at the discretion of Administrative BankAgent; and Sixth, pari passu to the Banks Lenders in accordance with their pro rata percentage of Obligations held by them (excluding those items set forth in First through Fifth and Seventh of this subsection (g)respective Proportionate Shares, unless an Unpaid Amount is owed pursuant to Section 10.1113.11, in which event such Unpaid Amount shall be deducted from the portion of such proceeds of the Defaulting Bank Lender and be applied to payment of such Unpaid Amount to the Special Advance Bank (as defined in Section 10.11), and Seventh to repayment of amounts due under any Bank-Provided Hedge TransactionLender.
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