Common use of Deed in Lieu of Foreclosure Clause in Contracts

Deed in Lieu of Foreclosure. Borrower shall not, and Borrower shall not cause, suffer or permit Mortgage Borrower to, enter into, execute, deliver, or consent to, as the case may be, any deed-in-lieu or consensual foreclosure with or for the benefit of Mortgage Lender or any of its Affiliates or designees unless (a) a Mortgage Loan Event of Default has occurred and is continuing, (b) Borrower has given Lender at least ninety (90) days prior written notice of its intent to execute, deliver or consent to, as the case may be, any deed-in-lieu, assignment-in-lieu or consensual foreclosure, and ( c) Lender has not commenced a UCC foreclosure sale in accordance with this Agreement or the other Loan Documents. Borrower shall not, and Borrower shall not cause, suffer or permit Mortgage Borrower to, enter into any consensual sale or other transaction in connection with the Mortgage Loan which could diminish, modify, terminate, impair or otherwise adversely affect the interests of Lender or Borrower in the Collateral or any portion thereof or any interest therein or the interests of Mortgage Lender or Mortgage Borrower in the Property or any portion thereof or any interest therein unless (a) a Mortgage Loan Event of Default has occurred and is continuing, (b) Borrower has given Lender at least ninety (90) days prior written notice of its intent to execute, deliver or consent to, as the case may be, any deed-in-lieu, assignment-in-lieu or consensual foreclosure, and ( c) Lender has not commenced a UCC foreclosure sale in accordance with this Agreement or the other Loan Documents.

Deed in Lieu of Foreclosure. (i) On the Forbearance Effective Date, Borrower shall notexecute and deliver to the Administrative Agent a deed in the form attached hereto as Exhibit H (“Deed in Lieu of Foreclosure”). Upon an Event of Default and acceleration of the Loans pursuant to Section 10.1, Administrative Agent and Lenders may, and Borrower shall not cause, suffer or permit Mortgage Borrower hereby authorizes Administrative Agent and Lenders to, enter intoattach to the Deed in Lieu of Foreclosure the legal description(s) for all Residential Units and their corresponding Parking Units and appurtenant common elements comprising the Project against which the Deed of Trust is a lien, executedate the Deed in Lieu of Foreclosure effective the date of default and make any other additions to the Deed in Lieu of Foreclosure necessary to comply with recording requirements then in effect in the County of Fairfax, deliverVirginia, and record the Deed in Lieu of Foreclosure. If requested by the Administrative Agent, Borrower shall promptly (a) re-execute the Deed in Lieu of Foreclosure and immediately deliver it to Administrative Agent; and/or (b) any affidavits and documents reasonably required for the Administrative Agent to obtain owner’s title insurance for the conveyed Units, and immediately deliver such affidavits and documents to the Administrative Agent. Provided Borrower has not (x) applied for, consented to, or consent toacquiesced in, as the case may beappointment of a trustee, any deed-in-lieu receiver, sequestrator or consensual foreclosure with other custodian for itself or a substantial part of its property, or made a general assignment for the benefit of Mortgage creditors, (y) filed for, permitted or suffered to exist the commencement of any bankruptcy, reorganization, debt arrangement or other case or proceeding under any bankruptcy or insolvency law, or any dissolution, winding up or liquidation proceeding, or (z) consented to or acquiesced in any such involuntary case or proceeding, or provided that if any involuntary case or proceeding described in Section 10.6(i)(y) is filed, it is dismissed within sixty (60) days of filing, the recordation of the Deed in Lieu of Foreclosure shall be deemed full satisfaction and payment of the Loans and Guarantor shall be deemed automatically released from the Guaranty. (ii) In the event the Administrative Agent exercises the remedy set forth in Section 10.6(i) and the Borrower becomes a debtor in any bankruptcy commenced under Title 11 of the U. S. Code prior to the recording of the Deed in Lieu of Foreclosure, the Borrower, as debtor, shall promptly file a motion in the bankruptcy proceeding to approve the transfer of the Units pursuant to Section 10.6(i) (or such higher offer received for the Units), or consent to a motion filed by the Administrative Agent or the Lenders to approve such transfer. (iii) The Administrative Agent may refuse to exercise the remedy set forth in Section 10.6(i) only in the event the Borrower is unable to deliver clear title to the Units to be transferred by the Deed in Lieu of Foreclosure, as determined by the Administrative Agent in its reasonable discretion. In such an event, the Administrative Agent may promptly proceed to initiate foreclosure of the Units and Property pursuant to the Deed of Trust, or exercise any other remedies available to Administrative Agent and Lenders under the Loan Documents or at law or in equity. Borrower and Guarantor acknowledge and agree that pursuant to the terms of the Loan Documents, the Administrative Agent has the right to foreclose on the Units and Property and under applicable law, the Administrative Agent and the Lenders have the right to bid on the Units and Property at the foreclosure sale and purchase the Units and Property at the foreclosure sale. Borrower and Guarantor agree fully to cooperate with the Administrative Agent and the substitute trustee in foreclosing on the Units and Property, including without limitation by: (1) providing and/or making available to the Administrative Agent all appropriate data, records and documents in the possession, custody or control of the Borrower and Guarantor, pertaining to the Units and Property; and (2) responding promptly to all reasonable inquiries and requests from the Administrative Agent. (iv) Borrower and Guarantor hereby grant authority to the Administrative Agent, its agents, employees, officers, attorneys, consultants and affiliates to disseminate, discuss and/or communicate with and contact any and all prospective purchasers at the foreclosure sale and to engage in such discussions, communications and other dialogues with such prospective purchasers as the Administrative Agent in its sole discretion deems appropriate. In connection with such discussions, communications and dialogues, the Administrative Agent is authorized, without limitation: (1) to disclose to prospective purchasers any and all information that the Administrative Agent in its sole judgment and discretion deems appropriate regarding the Loans including, but not limited to, any and all information regarding the existing balance of each Loan, the interest rate of each Loan, and other related information concerning the Loans; (2) to disclose to prospective purchasers any and all information relating to the Units and the Property; and (3) to take such other actions as the Administrative Agent may deem necessary or desirable to facilitate the sale of the Units and Property including, without limitation, contacting real estate brokers and prospective purchasers, preparing and disseminating advertising materials relating to the Units and Property, operating statements and financial information, and entering upon the Property for any purpose reasonably related to sale, including, without limitation, showing the Property to prospective purchasers or interested parties. (v) Borrower and Guarantor covenant and agree not to oppose any foreclosure of the Units and Property, covenant and agree not to interpose any defenses to the Administrative Agent’s efforts to foreclose pursuant to this Article X and applicable law, and waive any defenses to foreclosure that they have or may have pursuant to applicable law and/or the Loan documents. Provided Borrower and Guarantor comply with the above provisions of this Section 10.6(v), and provided Borrower has not (x) applied for, consented to, or acquiesced in, the appointment of a trustee, receiver, sequestrator or other custodian for itself or a substantial part of its property, or made a general assignment for the benefit of creditors, (y) filed for, permitted or suffered to exist the commencement of any bankruptcy, reorganization, debt arrangement or other case or proceeding under any bankruptcy or insolvency law, or any dissolution, winding up or liquidation proceeding, or (z) consented to or acquiesced in any such involuntary case or proceeding, or provided that if any involuntary case or proceeding described in Section 10.6(v)(y) is filed, it is dismissed within sixty (60) days of filing, the foreclosure of the Units and the Property shall be deemed full satisfaction and payment of the Loans and Guarantor shall be deemed automatically released from the Guaranty. y) The first sentence of Section 12.6(c) of the Loan Agreement is amended to read as follows: Any Lender (an “Assignor”) may, in accordance with applicable Law and upon written notice to the Administrative Agent, at any time and from time-to-time assign to any Eligible Assignee or, with the consent of the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), to an additional bank, financial institution or other entity (each, an “Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment and Acceptance, in form acceptable to Assignor and Assignee (an “Assignment and Acceptance”), executed by such Assignee and such Assignor (and, where the consent of the Administrative Agent is required pursuant to the foregoing provisions, by the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any Affiliate, Related Fund or Control Investment Affiliate thereof) shall be in an aggregate principal amount of its Affiliates or designees less than $1,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement), unless (a) otherwise agreed by the Administrative Agent. In the event an assignment results in a Mortgage Loan Event of Default has occurred and is continuingparty other than the Administrative Agent administering the Loan, (b) Borrower has given Lender at least ninety (90) days prior written the Administrative Agent shall provide notice of its intent the Assignment and Acceptance, along with proper contact information, to executethe Borrower and Guarantor within three (3) business days of the Assignment and Acceptance. z) Section 3.4 of the Loan Agreement is amended to read as follows: Pending Litigation. Except as disclosed on Exhibit C attached to this Agreement, deliver no actions, suits, or consent toproceedings (including condemnation or eminent domain proceedings) are pending or, as to Borrower’s or Guarantor’s knowledge, threatened against or affecting Borrower, the case may beProperty, the Membership Interests, or any deed-in-lieu, assignment-in-lieu or consensual foreclosure, and ( c) Lender has not commenced a UCC foreclosure sale in accordance with this Agreement or other assets subject to the other Loan Documents. Borrower shall notNone of the items (if any) listed on Exhibit C will have a Material Adverse Effect. aa) Exhibit C of the Loan Agreement is replaced with Exhibit C attached to this Forbearance Agreement. bb) Section 3.5 of the Loan Agreement is amended to read as follows: No Violation. There exists no violation, or default with respect to any of the Basic Agreements or of any mortgage, deed of trust, indenture or any other material contract, agreement or instrument applicable to Borrower, Guarantor, the Property, or the Membership Interests, or by which any of the foregoing is bound. The execution, delivery and Borrower shall performance of the Loan Documents will not causeresult in any such violation, suffer conflict or permit Mortgage Borrower todefault, enter into any consensual sale or other transaction in connection with the Mortgage Loan which could diminish, modify, terminate, impair or otherwise adversely affect the interests of Lender or Borrower result in the Collateral creation of any Lien on any of the assets of Borrower or any portion thereof or any interest therein or Guarantor, other than the interests Permitted Exceptions and Liens in favor of Mortgage Lender or Mortgage Borrower in Lenders. cc) Section 3.8 of the Property or any portion thereof or any interest therein unless (a) a Mortgage Loan Event of Default has occurred and Agreement is continuing, (b) Borrower has given Lender at least ninety (90) days prior written notice of its intent amended to execute, deliver or consent to, read as the case may be, any deed-in-lieu, assignment-in-lieu or consensual foreclosure, and ( c) Lender has not commenced a UCC foreclosure sale in accordance with this Agreement or the other Loan Documents.follows: