Common use of Default by the Borrower Clause in Contracts

Default by the Borrower. The Lender shall promptly, after the Lender's having knowledge thereof, inform the Co-Investing Participants in writing of any material default under the Loan Documents and of all material facts relating to such default or relating to any other aspect of the Loan which facts are likely to have a materially adverse effect on the value of the security for the Loan or on the ability of the Borrower or any Guarantor to perform its obligations under the Loan Documents and shall keep the Co-Investing Participants informed and up to date with respect to such default and such facts and any actions taken by the Lender, in its capacity as lead lender and servicer, in connection therewith, in written notices delivered on a reasonably timely basis in connection with the material developments relating thereto. Upon the occurrence of a material default under the Loan Documents, and within 10 days after written notification to the Co-Investing Participants by the Lender of such default or within such shorter period of time after notification as may be deemed advisable by the Lender, the Lender and the Co-Investing Participants shall consult to determine a mutually acceptable course of action to take with respect to such default and then to pursue such course of action without delay and with due diligence. Notwithstanding any contrary or inconsistent provision of this paragraph, no Co-Investing Participant shall be obligated or required hereunder to approve or disapprove of the actual taking of title to the Premises and the Improvements by the Lender and the Co-Investing Participants (whether at a foreclosure sale, the consummation of a deed in lieu of foreclosure transaction or otherwise) unless and until the Lender has furnished such Co-Investing Participant with a recent appraisal and an updated environmental report concerning the Premises and the Improvements. No action whatsoever shall be taken by the Lender in response to any such default unless the Lender and the Co- Investing Participants unanimously agree upon a mutually acceptable course of action to pursue. If foreclosure is the action taken, then after payment of all reasonable costs and expenses of foreclosure and collection, the Lender shall promptly remit to each Co-Investing Participant its pro rata share of all net proceeds received by the Lender as a consequence of such foreclosure proceeding, including, without limitation, net proceeds of foreclosure sale, net income from operation of the Premises and the Improvements pending liquidation, and net proceeds of any resale of the Premises and the Improvements. If the Premises and the Improvements are acquired through foreclosure, deed in lieu of foreclosure or otherwise, the Lender and the Co-Investing Participants shall have undivided interests in the Premises and the Improvements equal to their respective undivided percentage interests in the Loan and title shall be taken in the name of the Lender (or a subsidiary thereof) and the Co-Investing Participants (or their respective nominees or affiliates, as applicable). If such title is taken, the Lender and the Co-Investing Participants respectively waive any statutory or common law right of partition or any other similar rights or remedies, and the Lender and the Co-Investing Participants agree to consult as to the best manner in which to proceed with respect to the operation, management, maintenance, development and disposition of the Premises and the Improvements. No action whatsoever shall be taken by the Lender with respect to the operation, management, maintenance, development and disposition of the Premises and the Improvements in response to any such default unless the Lender and the Co-Investing Participants unanimously agree upon a mutually acceptable course of action to pursue. The Lender shall, subject to the provisions of this paragraph, retain in its capacity as lead lender and servicer, all rights with respect to the operation, management and maintenance of the Premises and the Improvements pending the disposition thereof in accordance with the provisions of this paragraph. The Co-Investing Participants shall promptly execute and deliver to the Lender all documents and instruments which may be reasonably requested or required by the Lender to enable the Lender to operate, manage and maintain the Premises and the Improvements and to effect a disposition thereof in accordance with the provisions of this paragraph. Without limiting the generality of the foregoing provisions, the Lender and the Co- Investing Participants shall undertake promptly upon any such taking of title, and shall thereafter diligently and expeditiously and in good faith negotiate, execute and deliver a partnership, operating, joint venture or other similar agreement setting forth the respective rights and obligations of the Lender and the Co-Investing Participants with respect to the Premises and the Improvements, which rights and obligations shall be substantially equivalent to the rights set forth in this Agreement. All reasonable out-of-pocket expenses actually incurred in connection with any action taken pursuant to the provisions of this paragraph shall be shared by the Lender and the Co-Investing Participants on a pro rata basis. The Lender and the Co-Investing Participants shall share in accordance with their respective undivided percentage interests in the Loan any losses, expenses, costs or liabilities (including, without limitation, reasonable attorneys' fees) sustained or incurred by the Lender or any Co-Investing Participant as a result of any action taken or not taken by the Lender in accordance with the provisions of this paragraph.

Default by the Borrower. The (a) Upon ▇▇▇▇▇▇’s acquiring actual knowledge that a default or Event of Default under the Junior Mezz Loan Documents has occurred, Lender shall promptly, after the Lender's having knowledge thereof, inform the Co-Investing Participants notify Participant in writing of any material default under the Loan Documents and of all material facts relating to within five (5) Business Days after obtaining such default or relating to any other aspect knowledge of the Loan which facts are likely to have a materially adverse effect on the value of the security for the Loan or on the ability of the Borrower or any Guarantor to perform its obligations under the Loan Documents existence and shall keep the Co-Investing Participants informed and up to date with respect to such default and such facts and any actions taken by the Lender, in its capacity as lead lender and servicer, in connection therewith, in written notices delivered on a reasonably timely basis in connection with the material developments relating thereto. Upon the occurrence of a material default under the Loan Documents, and within 10 days after written notification to the Co-Investing Participants by the Lender nature of such default or within Event of Default. Following such shorter period of time after notification as may be deemed advisable by the Lendernotice to Participant, the Lender and the Co-Investing Participants shall consult to determine propose a mutually acceptable course of action that Lender has determined ought to take with respect to be taken as a result of such default and then to pursue such course or Event of action without delay and with due diligence. Notwithstanding any contrary or inconsistent provision of this paragraph, no Co-Investing Participant shall be obligated or required hereunder to approve or disapprove of the actual taking of title to the Premises and the Improvements by the Lender and the Co-Investing Participants (whether at a foreclosure sale, the consummation of a deed in lieu of foreclosure transaction or otherwise) unless and until the Lender has furnished such Co-Investing Participant with a recent appraisal and an updated environmental report concerning the Premises and the Improvements. No action whatsoever shall be taken by the Lender in response to any such default unless the Lender and the Co- Investing Participants unanimously agree upon a mutually acceptable course of action to pursue. If foreclosure is the action taken, then after payment of all reasonable costs and expenses of foreclosure and collection, the Lender shall promptly remit to each Co-Investing Participant its pro rata share of all net proceeds received by the Lender as a consequence of such foreclosure proceeding, including, without limitation, net proceeds of foreclosure sale, net income from operation of the Premises and the Improvements pending liquidation, and net proceeds of any resale of the Premises and the Improvements. If the Premises and the Improvements are acquired through foreclosure, deed in lieu of foreclosure or otherwise, the Lender and the Co-Investing Participants shall have undivided interests in the Premises and the Improvements equal to their respective undivided percentage interests in the Loan and title shall be taken in the name of the Lender (or a subsidiary thereof) and the Co-Investing Participants (or their respective nominees or affiliates, as applicable). If such title is taken, the Lender and the Co-Investing Participants respectively waive any statutory or common law right of partition or any other similar rights or remedies, and the Lender and the Co-Investing Participants agree to consult as to the best manner in which to proceed with respect to the operation, management, maintenance, development and disposition of the Premises and the Improvements. No action whatsoever shall be taken by the Lender with respect to the operation, management, maintenance, development and disposition of the Premises and the Improvements in response to any such default unless the Lender and the Co-Investing Participants unanimously agree upon a mutually acceptable course of action to pursue. The Lender shall, subject to the provisions of this paragraph, retain in its capacity as lead lender and servicer, all rights with respect to the operation, management and maintenance of the Premises and the Improvements pending the disposition thereof in accordance with the provisions of this paragraph. The Co-Investing Participants shall promptly execute and deliver to the Lender all documents and instruments which may be reasonably requested or required by the Lender to enable the Lender to operate, manage and maintain the Premises and the Improvements and to effect a disposition thereof in accordance with the provisions of this paragraph. Without limiting the generality of the foregoing provisions, the Lender and the Co- Investing Participants shall undertake promptly upon any such taking of title, and shall thereafter diligently and expeditiously and in good faith negotiate, execute and deliver a partnership, operating, joint venture or other similar agreement setting forth the respective rights and obligations of the Lender and the Co-Investing Participants with respect to the Premises and the Improvements, which rights and obligations shall be substantially equivalent to the rights set forth in this Agreement. All reasonable out-of-pocket expenses actually incurred in connection with any action taken pursuant to the provisions of this paragraph shall be shared by the Lender and the Co-Investing Participants on a pro rata basis. The Lender and the Co-Investing Participants shall share in accordance with their respective undivided percentage interests in the Loan any losses, expenses, costs or liabilities Default (including, without limitation, reasonable attorneys' feesany Enforcement Action) sustained or incurred by the Lender or any Co-Investing and, provided that Participant approves such course of action as a result Lender Decision/Action, Lender may proceed to take such course of action. Nothing contained herein shall preclude Participant from proposing a different course of action for approval by ▇▇▇▇▇▇. Lender and Participant agree that if they agree upon Lender commencing an Enforcement Action, Lender shall be authorized without further consent of the Participant but, if time permits, upon prior written notice to Participant to take all administrative and ministerial actions in pursuit of such action consistent with ▇▇▇▇▇▇’s standard of care under Section 4(b) hereof, including by way of example and not by limitation, decisions regarding details of advertising a UCC Sale, the location of such a sale and similar matters provided that the amount and terms of any action taken bid shall be deemed a Lender Decision/Action. In the event that Lender and Participant agree that a sale of the Equity Interests or not taken other Collateral is to be instituted, absent an agreement to the contrary by ▇▇▇▇▇▇ and Participant, the bid amount shall be the full outstanding principal balance of the Junior Mezz Loan, all accrued and unpaid interest at the Default Rate, all late charges and other amounts payable under the Junior Mezz Loan. (b) In the event that any Enforcement Action is instituted, Lender shall keep Participant reasonably informed as to the progress thereof and Participant shall have the right to meet with and consult with Lender with respect to such Enforcement Action and Event of Default. In the event Lender proposes to discontinue or modify in accordance with any material respect any such Enforcement Action, the provisions same shall constitute a Lender Decision/Action requiring the prior written consent of this paragraphParticipant.

Default by the Borrower. The (a) Upon Lender’s acquiring actual knowledge that a default or Event of Default under the Junior Mezz Loan Documents has occurred, Lender shall promptly, after the Lender's having knowledge thereof, inform the Co-Investing Participants notify Participant in writing of any material default under the Loan Documents and of all material facts relating to within five (5) Business Days after obtaining such default or relating to any other aspect knowledge of the Loan which facts are likely to have a materially adverse effect on the value of the security for the Loan or on the ability of the Borrower or any Guarantor to perform its obligations under the Loan Documents existence and shall keep the Co-Investing Participants informed and up to date with respect to such default and such facts and any actions taken by the Lender, in its capacity as lead lender and servicer, in connection therewith, in written notices delivered on a reasonably timely basis in connection with the material developments relating thereto. Upon the occurrence of a material default under the Loan Documents, and within 10 days after written notification to the Co-Investing Participants by the Lender nature of such default or within Event of Default. Following such shorter period of time after notification as may be deemed advisable by the Lendernotice to Participant, the Lender and the Co-Investing Participants shall consult to determine propose a mutually acceptable course of action that Lender has determined ought to take with respect to be taken as a result of such default and then to pursue such course or Event of action without delay and with due diligence. Notwithstanding any contrary or inconsistent provision of this paragraph, no Co-Investing Participant shall be obligated or required hereunder to approve or disapprove of the actual taking of title to the Premises and the Improvements by the Lender and the Co-Investing Participants (whether at a foreclosure sale, the consummation of a deed in lieu of foreclosure transaction or otherwise) unless and until the Lender has furnished such Co-Investing Participant with a recent appraisal and an updated environmental report concerning the Premises and the Improvements. No action whatsoever shall be taken by the Lender in response to any such default unless the Lender and the Co- Investing Participants unanimously agree upon a mutually acceptable course of action to pursue. If foreclosure is the action taken, then after payment of all reasonable costs and expenses of foreclosure and collection, the Lender shall promptly remit to each Co-Investing Participant its pro rata share of all net proceeds received by the Lender as a consequence of such foreclosure proceeding, including, without limitation, net proceeds of foreclosure sale, net income from operation of the Premises and the Improvements pending liquidation, and net proceeds of any resale of the Premises and the Improvements. If the Premises and the Improvements are acquired through foreclosure, deed in lieu of foreclosure or otherwise, the Lender and the Co-Investing Participants shall have undivided interests in the Premises and the Improvements equal to their respective undivided percentage interests in the Loan and title shall be taken in the name of the Lender (or a subsidiary thereof) and the Co-Investing Participants (or their respective nominees or affiliates, as applicable). If such title is taken, the Lender and the Co-Investing Participants respectively waive any statutory or common law right of partition or any other similar rights or remedies, and the Lender and the Co-Investing Participants agree to consult as to the best manner in which to proceed with respect to the operation, management, maintenance, development and disposition of the Premises and the Improvements. No action whatsoever shall be taken by the Lender with respect to the operation, management, maintenance, development and disposition of the Premises and the Improvements in response to any such default unless the Lender and the Co-Investing Participants unanimously agree upon a mutually acceptable course of action to pursue. The Lender shall, subject to the provisions of this paragraph, retain in its capacity as lead lender and servicer, all rights with respect to the operation, management and maintenance of the Premises and the Improvements pending the disposition thereof in accordance with the provisions of this paragraph. The Co-Investing Participants shall promptly execute and deliver to the Lender all documents and instruments which may be reasonably requested or required by the Lender to enable the Lender to operate, manage and maintain the Premises and the Improvements and to effect a disposition thereof in accordance with the provisions of this paragraph. Without limiting the generality of the foregoing provisions, the Lender and the Co- Investing Participants shall undertake promptly upon any such taking of title, and shall thereafter diligently and expeditiously and in good faith negotiate, execute and deliver a partnership, operating, joint venture or other similar agreement setting forth the respective rights and obligations of the Lender and the Co-Investing Participants with respect to the Premises and the Improvements, which rights and obligations shall be substantially equivalent to the rights set forth in this Agreement. All reasonable out-of-pocket expenses actually incurred in connection with any action taken pursuant to the provisions of this paragraph shall be shared by the Lender and the Co-Investing Participants on a pro rata basis. The Lender and the Co-Investing Participants shall share in accordance with their respective undivided percentage interests in the Loan any losses, expenses, costs or liabilities Default (including, without limitation, reasonable attorneys' feesany Enforcement Action) sustained or incurred by the Lender or any Co-Investing and, provided that Participant approves such course of action as a result Lender Decision/Action, Lender may proceed to take such course of action. Nothing contained herein shall preclude Participant from proposing a different course of action for approval by Lender. Lender and Participant agree that if they agree upon Lender commencing an Enforcement Action, Lender shall be authorized without further consent of the Participant but, if time permits, upon prior written notice to Participant to take all administrative and ministerial actions in pursuit of such action consistent with Lender’s standard of care under Section 4(b) hereof, including by way of example and not by limitation, decisions regarding details of advertising a UCC Sale, the location of such a sale and similar matters provided that the amount and terms of any action taken bid shall be deemed a Lender Decision/Action. In the event that Lender and Participant agree that a sale of the Equity Interests or not taken other Collateral is to be instituted, absent an agreement to the contrary by Lender and Participant, the bid amount shall be the full outstanding principal balance of the Junior Mezz Loan, all accrued and unpaid interest at the Default Rate, all late charges and other amounts payable under the Junior Mezz Loan. (b) In the event that any Enforcement Action is instituted, Lender shall keep Participant reasonably informed as to the progress thereof and Participant shall have the right to meet with and consult with Lender with respect to such Enforcement Action and Event of Default. In the event Lender proposes to discontinue or modify in accordance with any material respect any such Enforcement Action, the provisions same shall constitute a Lender Decision/Action requiring the prior written consent of this paragraphParticipant.