|
after request by the Funding Lender and the Servicer, with a statement, duly acknowledged and certified,
<br />setting forth, as applicable, with respect to each Borrower Note, (i) the unpaid principal of the Borrower
<br />Note, (ii) the applicable Interest Rate, (iii) the date installments of interest and/or principal were last paid,
<br />(iv) any offsets or defenses to the payment of the Borrower Payment Obligations, and (v) that the
<br />Borrower Loan Documents and the Funding Loan Documents to which the Borrower is a party are valid,
<br />legal and binding obligations of the Borrower and have not been modified or, if modified, giving
<br />particulars of such modification, and no Event of Default exists thereunder or specify any Event of
<br />Default that does exist thereunder. The Borrower shall use commercially reasonable efforts to furnish to
<br />the Funding Lender or the Servicer, within 3o days of a request by the Funding Lender or Servicer, tenant
<br />estoppel certificates from each commercial tenant at the Project in form and substance reasonably
<br />satisfactory to the Funding Lender and the Servicer; provided that the Funding Lender and the Servicer
<br />shall not make such requests more frequently than twice in any year.
<br />Section 5.13. Defense of Actions. The Borrower shall appear in and defend any action or
<br />proceeding purporting to affect the security for this Borrower Loan Agreement hereunder or under the
<br />Borrower Loan Documents and the Funding Loan Documents, and shall pay, in the manner required by
<br />Section 2.4 hereof, all costs and expenses, including the cost of evidence of title and attorneys' fees, in
<br />any such action or proceeding in which Funding Lender may appear. If the Borrower fails to perform any
<br />of the covenants or agreements contained in this Borrower Loan Agreement or any other Borrower Loan
<br />Document, or if any action or proceeding is commenced that is not diligently defended by the Borrower
<br />which affects the Funding Lender's interest in the Project or any part thereof, including eminent domain,
<br />code enforcement or proceedings of any nature whatsoever under any Federal or state law, whether now
<br />existing or hereafter enacted or amended, then the Funding Lender may make such appearances, disburse
<br />such sums and take such action as the Funding Lender deems necessary or appropriate to protect its
<br />interests. Such actions include disbursement of attorneys' fees, entry upon the Project to make repairs or
<br />take other action to protect the security of the Project, and payment, purchase, contest or compromise of
<br />any encumbrance, charge or lien which in the judgment of Funding Lender appears to be prior or superior
<br />to the Borrower Loan Documents or the Funding Loan Documents. The Funding Lender shall have no
<br />obligation to do any of the above. The Funding Lender may take any such action without notice to or
<br />demand upon the Borrower. No such action shall release the Borrower from any obligation under this
<br />Borrower Loan Agreement or any of the other Borrower Loan Documents or Funding Loan Documents.
<br />In the event (i) that the Security Instrument is foreclosed in whole or in part or that any Borrower Loan
<br />Document is put into the hands of an attorney for collection, suit, action or foreclosure, or (ii) of the
<br />foreclosure of any mortgage, deed of trust or deed to secure debt prior to or subsequent to the Security
<br />Instrument or any Borrower Loan Document in which proceeding the Funding Lender is made a party or
<br />(iii) of the banl~ruptcy of the Borrower or an assignment by the Borrower for the benefit of its creditors,
<br />the Borrower shall be chargeable with and agrees to pay all costs of collection and defense, including
<br />actual attorneys' fees in connection therewith and in connection with any appellate proceeding or post-
<br />judgment action involved therein, which shall be due and payable together with all required service or use
<br />taxes.
<br />Section 5.14. Expenses. The Borrower shall pay all reasonable expenses incurred by the
<br />Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer (except as provided in
<br />Section 9.1 hereof) in connection with the Borrower Loan and the Funding Loan, including reasonable
<br />fees and expenses of the Governmental Lender's, the Fiscal Agent's, the Funding Lender's and the
<br />Servicer's attorneys, environmental, engineering and other consultants, and fees, charges or taxes for the
<br />recording or filing of the Borrower Loan Documents and the Funding Loan Documents. The Borrower
<br />shall pay or cause to be paid all reasonable expenses of the Governmental Lender, the Funding Lender,
<br />the Fiscal Agent and the Servicer (except as provided in Section 9.1 hereof in connection with the
<br />issuance or administration of the Borrower Loan and the Funding Loan, including audit costs, inspection
<br />fees, settlement of condemnation and casualty awards, and premiums for title insurance and endorsements
<br />C:1Use1s1tadlDesktoplSanta Ana HA Washington Place 3'] F
<br />BLA.doc ~ ''~
<br />~,.
<br />DRAFT 11 /28/12 8:41 AM
<br />
|