Condominium. (a) To (i) not amend or supplement the Condominium Documents without Agent’s prior approval, such approval not to be unreasonably withheld (Borrower and Agent hereby acknowledging and confirming that (x) subject to clause (y) of this parenthetical clause, Agent has approved the Condominium Declaration and the Condominium By-Laws substantially in the form attached as Exhibit E to the Operating Agreement, as the same is to be amended in accordance with the First Amendment) and (y) Agent’s approval, not to be unreasonably withheld, shall be required with respect to all portions of the Condominium Declaration and Condominium By-Laws not yet finalized and therefore not contained in said amended Exhibit E (e.g., Exhibits C, D and G of the Condominium Declaration), (ii) cause the Condominium Documents to comply with all applicable Legal Requirements, (iii) cause the Condominium Documents to be filed in the appropriate public offices and the condominium thereunder to be validly created on or prior to the achievement of Core and Shell Completion and (vi) from and after the date that the condominium is created, diligently enforce (and use diligent efforts to cause the condominium association to enforce) the second sentence of Section 1 of Article IX of the Condominium Declaration. (b) Without the prior consent of Agent, neither Borrower nor any Member shall abandon or change its plan for submission of the Mortgaged Property to the condominium form of ownership. (c) Agent shall, on Borrower’s request, and provided no Noticed Default or Event of Default shall then exist, subordinate the lien of the Project Loan Mortgage to the liens in favor of the condominium for common charges set forth in the Condominium Declaration pursuant to the Condominium Subordination Agreement, upon the satisfaction of the conditions enumerated below: (i) the NYTC Units Redemption shall have occurred in accordance with Section 7.46(a) hereof; (ii) the Title Insurance Policy insuring the Project Loan Mortgage shall have been endorsed to provide affirmative insurance in the form of Exhibit N attached hereto, to the effect that the Mortgaged Property constitutes a condominium validly created under the Condominium Act, Agent shall have received an assurance letter from the Title Companies in the form of Exhibit O hereto and Agent shall have received an endorsement to the existing title policy to the effect that the spreading of the Project Loan Mortgage and the Building Loan Mortgage referred to below shall not effect the validity or priority of such Mortgages; (iii) Borrower shall have duly executed and delivered, or caused to be duly executed and delivered, to Agent (a) a conditional assignment of Borrower’s rights under the Condominium Documents in the form of Exhibit P hereto and (b) a conditional resignation of each of the Managers (as defined in the Condominium Declaration) of the condominium association in the form of Exhibit Q hereto; (iv) Agent shall have received an opinion from counsel reasonably satisfactory to Agent which shall include opinions to the effect that (A) the Condominium Documents satisfy all applicable requirements of Governmental Authorities and have been duly executed and delivered and are enforceable against and by the Borrower, (B) all Legal Requirements relating to the formation of the condominium have been duly satisfied and, assuming the recording of the Condominium Declaration and the subordination of the Project Loan Mortgage and Building Loan Mortgage to the Condominium Declaration pursuant to the Condominium Subordination Agreement, the condominium has been duly and validly created and is existing in full force and effect, (C) the assignment referred to in clause (iii) of this subsection has been duly authorized, executed and delivered by Borrower and is enforceable against Borrower and (D) the resignations referred to in clause (iii) of this subsection are enforceable against said parties in accordance with their respective terms; (v) the condominium which shall be created by the Condominium Documents, together with Borrower, shall have furnished to Agent, at no cost or expense to Agent, a blanket insurance policy complying with the applicable requirements contained in the Project Loan Mortgage; (vi) the condominium association shall have (A) collaterally assigned its rights to Leases of rooftop and lobby spaces and agreed to deposit all Rents therefrom (to the extent of FC Member’s interest therein) into one of the Collection Accounts and (B) collaterally assigned the rights to excess casualty proceeds (to the extent of FC Member’s interest therein) to Agent for the benefit of Agent and Lenders, in each case pursuant to an agreement in form and substance reasonably satisfactory to Agent and Agent shall have received an opinion of counsel reasonably satisfactory to Agent as to the due authorization, execution and delivery and enforceability of such agreements and such other customary matters with respect thereto as Agent may reasonably require; (vii) the Project Loan Mortgage shall have been spread to cover the Severance Subleases to which FC Member is a party and the Ground Lease shall be released from the lien thereof; (viii) the Lease Assignment (as defined in the Ground Lease) shall have been duly executed and delivered; (ix) Agent shall have received such other documents (including, without limitation, a title continuation), certificates, instruments, opinions or assurances as Agent may reasonably request; and (x) Borrower shall have paid all reasonable out of pocket costs and expenses incurred by Agent in connection with the foregoing (including reasonable attorneys’ fees and disbursements). (d) Borrower shall give Agent not less than ten (10) Business Days notice of any meeting of the condominium board and shall cause Agent or any representative thereof to be permitted to attend any such meeting. Upon reasonable notice by Agent, Borrower shall cause Agent or any representative thereof to be permitted to inspect the books and records of the Board of Managers and the FC Board of Managers (as each such term is defined in the Condominium Documents).
Appears in 1 contract
Condominium. (a) To The Declaration (iincluding the Bylaws) not amend or supplement the Condominium Documents without Agent’s prior approval, such approval not to be unreasonably withheld (Borrower and Agent hereby acknowledging and confirming that (x) subject to clause (y) of this parenthetical clause, Agent has approved the Condominium Declaration and the Condominium By-Laws substantially Plans are in compliance in all material respects with all Condominium Laws. Borrower shall not modify or amend the form attached as Exhibit E to Declaration (including the Operating AgreementBylaws) and/or the Condominium Plans without Lender’s prior written consent, as the same is to be amended in accordance with the First Amendment) and (y) Agent’s approval, which consent shall not to be unreasonably withheld, shall be required with respect to all portions conditioned or delayed, provided (i) no Event of the Condominium Declaration and Condominium By-Laws not yet finalized and therefore not contained in said amended Exhibit E (e.g., Exhibits C, D and G of the Condominium Declaration)Default exists, (ii) cause the Condominium Documents to comply such amendment or modification complies with all applicable Legal RequirementsCondominium Laws, and (iii) cause the Condominium Documents to be filed SCA has approved the amendment in the appropriate public offices and the condominium thereunder to be validly created on or prior writing to the achievement of Core and Shell Completion and (vi) from and after extent it has approval rights thereto under the date that the condominium is created, diligently enforce (and use diligent efforts to cause the condominium association to enforce) the second sentence of Section 1 of Article IX of the Condominium DeclarationSchool Unit Purchase Agreement.
(b) Without the prior consent of Agent, neither Borrower nor any Member shall abandon or change its plan for submission of the Mortgaged Property to the condominium form of ownership.
(c) Agent shall, on Borrower’s request, and provided no Noticed Default or Event of Default shall then exist, subordinate the lien of the Project Loan Mortgage to the liens in favor of the condominium for common charges set forth in the Condominium Declaration pursuant to the Condominium Subordination Agreement, upon the satisfaction of the conditions enumerated belowagrees that:
(i) Borrower shall not, without Lender’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed provided (x) no Event of Default exists and (y) such amendment or modification complies with all Condominium Laws, amend, modify or supplement, or consent to or suffer the NYTC Units Redemption amendment, modification or supplementation of any of the Condominium Documents (except with respect to (1) price change amendments to the Offering Plan increasing the Schedule A—Purchase Prices (each a “Price Change Amendment”) as provided in Article 16 hereof, and (2) annual update amendments required under Attorney General regulations to extend the term of the Offering Plan). Borrower shall have occurred not consent to the merger of the Condominium with any other condominium without Lender’s prior written consent, which may be withheld in accordance with Section 7.46(aits sole and absolute discretion. Lender shall endeavor to respond to each request by Borrower for Lender’s approval of an amendment to the Condominium Documents within twenty (20) hereofBusiness Days following Lender’s receipt of such request and all required documents and information relating to such request. If Lender does not notify Borrower of its approval or disapproval of a proposed amendment to the Condominium Documents within twenty (20) Business Days after request by Borrower and submission by Borrower of all information needed by Lender to evaluate said request, then Borrower may deliver a second request, which request shall state on the top of the first page in bold lettering “LENDER’S RESPONSE IS REQUIRED WITHIN TEN (10) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF THE MASTER LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER.” If Lender does not notify Borrower of its approval or disapproval of the proposed amendment to the Condominium Documents within ten (10) Business Days after such second request, then as long as no Event of Default or Potential Event of Default exists, the same shall be deemed approved;
(ii) the Title Insurance Policy insuring the Project Loan Mortgage shall have been endorsed Borrower will pay, or cause to provide affirmative insurance in the form of Exhibit N attached heretobe paid, to the effect that all assessments for common charges and expenses made against the Mortgaged Property constitutes a condominium validly created under owned by Borrower pursuant to the Condominium Act, Agent Documents as the same shall have received an assurance letter from the Title Companies in the form of Exhibit O hereto become due and Agent shall have received an endorsement to the existing title policy to the effect that the spreading of the Project Loan Mortgage and the Building Loan Mortgage referred to below shall not effect the validity or priority of such Mortgagespayable;
(iii) Borrower will comply in all material respects with all of the terms, covenants and conditions on Borrower’s part to be complied with, pursuant to the Condominium Documents and any rules and regulations that may be adopted for the Condominium, as the same shall have duly executed be in force and deliveredeffect from time to time;
(iv) Borrower, or caused Borrower’s designated members of the Condominium Board of Managers, will take all actions as may be reasonably necessary from time to time to preserve and maintain the Condominium in accordance with the Condominium Laws;
(v) Borrower will not, without the prior written consent of Lender (which consent may be granted or withheld in Lender’s sole and absolute discretion), take (and hereby assigns to Lender any right it may have to take) any action to terminate the Condominium, withdraw the Condominium from the Condominium Laws, or cause a partition of the Condominium to be duly executed so withdrawn;
(vi) it shall be an Event of Default if (A) pursuant to any judgment, decision, order, rule or regulation of either a court of competent jurisdiction or a governmental agency with jurisdiction over the Premises and deliveredfollowing the expiration of all applicable appeal periods, any material provision of the Condominium Documents is held to Agent be invalid and such invalidity shall materially and adversely affect the lien of the Mortgage or Lender’s other security interests under the Loan Documents, or (aB) a conditional assignment the Condominium shall become subject to any action for partition by any Unit Owner and said action has not been dismissed within ninety (90) days after commencement thereof, or (C) the Condominium is withdrawn from the condominium regime established under the Condominium Laws;
(vii) Borrower will not, without Lender’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed so long as no Event of Default exists, exercise any right it may have to vote for (A) any additions or improvements to the common elements of the Condominium that are not included in the Condominium Plans or otherwise disclosed in the Offering Plan, except as such additions or improvements may be required by Legal Requirements, (B) any borrowing on behalf of the Condominium or (C) the expenditure of any insurance proceeds or condemnation awards for the repair or restoration of the Improvements (unless Borrower is entitled to utilize such insurance proceeds in accordance with Section 5.2(d) hereof);
(viii) Except as may be otherwise provided in the Offering Plan, in the Declaration or as may be required by the Condominium Laws, Borrower shall control the Condominium Board of Managers and the Condominium Association formed by the Condominium Documents at least until such time as more than fifty percent (50%) of the Residential Units have been sold in accordance with this Agreement;
(ix) For so long as Borrower controls the Condominium Board of Managers, Borrower will, in accordance with Borrower’s rights under the Condominium Documents in the form of Exhibit P hereto and (b) a conditional resignation of each of the Managers (as defined in Documents, cause the Condominium Declaration) Board of Managers to maintain insurance on the condominium association Condominium in the form of Exhibit Q hereto;
(iv) Agent shall have received an opinion from counsel reasonably satisfactory to Agent which shall include opinions to the effect that (A) accordance with the Condominium Documents satisfy all applicable requirements of Governmental Authorities and have been duly executed and delivered and are enforceable against and by the Borrower, (B) all Legal Requirements relating to the formation of the condominium have been duly satisfied and, assuming the recording of the Condominium Declaration and the subordination of the Project Loan Mortgage and Building Loan Mortgage to the Condominium Declaration pursuant to the Condominium Subordination this Agreement, the condominium has been duly and validly created and is existing in full force and effect, (C) the assignment referred to in clause (iii) of this subsection has been duly authorized, executed and delivered by Borrower and is enforceable against Borrower and (D) the resignations referred to in clause (iii) of this subsection are enforceable against said parties in accordance with their respective terms;
(v) the condominium which shall be created by the Condominium Documents, together with Borrower, shall have furnished to Agent, at no cost or expense to Agent, a blanket insurance policy complying with the applicable requirements contained in the Project Loan Mortgage;
(vi) the condominium association shall have (A) collaterally assigned its rights to Leases of rooftop and lobby spaces and agreed to deposit all Rents therefrom (to the extent of FC Member’s interest therein) into one of the Collection Accounts and (B) collaterally assigned the rights to excess casualty proceeds (to the extent of FC Member’s interest therein) to Agent for the benefit of Agent and Lenders, in each case pursuant to an agreement in form and substance reasonably satisfactory to Agent and Agent shall have received an opinion of counsel reasonably satisfactory to Agent as to the due authorization, execution and delivery and enforceability of such agreements and such other customary matters with respect thereto as Agent may reasonably require;
(vii) the Project Loan Mortgage shall have been spread to cover the Severance Subleases to which FC Member is a party and the Ground Lease shall be released from the lien thereof;
(viii) the Lease Assignment (as defined in the Ground Lease) shall have been duly executed and delivered;
(ix) Agent shall have received such other documents (including, without limitation, a title continuation), certificates, instruments, opinions or assurances as Agent may reasonably request; and
(x) For so long as Borrower shall have paid all reasonable out controls the Condominium Board of pocket costs and expenses incurred by Agent Managers, Borrower, in connection accordance with Borrower’s rights under the foregoing (including reasonable attorneys’ fees and disbursements).
(d) Borrower shall give Agent not less than ten (10) Business Days notice of any meeting of the condominium board and Condominium Documents, shall cause Agent or any representative thereof to be permitted to attend any such meeting. Upon reasonable notice by Agent, Borrower shall cause Agent or any representative thereof to be permitted to inspect the books and records of the Condominium Board of Managers and to enforce the FC Board of Managers (as each such term is defined in the Condominium Documents)Management Agreement.
Appears in 1 contract
Sources: Master Loan Agreement (Trinity Place Holdings Inc.)
Condominium. (Borrower represents and warrants that:
a) To (i) not amend or supplement ▇▇▇▇▇▇▇▇ has delivered to Lender true, correct and complete copies of each of the Condominium Documents without Agent’s prior approval, such approval not and there are no amendments of or modifications to be unreasonably withheld (Borrower and Agent hereby acknowledging and confirming that (xany Condominium Documents except as disclosed in writing to Lender;
b) subject to clause (y) of this parenthetical clause, Agent has approved the Condominium Declaration and the Condominium By-Laws substantially in the form attached as Exhibit E to the Operating Agreement, as the same is to be amended in accordance with the First Amendment) and (y) Agent’s approval, not to be unreasonably withheld, shall be required with respect to all portions of the Condominium Declaration and Condominium By-Laws not yet finalized and therefore not contained in said amended Exhibit E (e.g., Exhibits C, D and G of the Condominium Declaration), (ii) cause the Condominium Documents to comply with all applicable Legal Requirements, (iiiare in full force and effect;
c) cause the Condominium Documents to be filed in do not prohibit the appropriate public offices and the condominium thereunder to be validly created on or prior to the achievement granting of Core and Shell Completion and (vi) from and after the date that the condominium is created, diligently enforce (and use diligent efforts to cause the condominium association to enforce) the second sentence of Section 1 of Article IX of the Condominium Declaration.
(b) Without the prior consent of Agent, neither Borrower nor any Member shall abandon or change its plan for submission of the Mortgaged Property to the condominium form of ownership.
(c) Agent shall, on Borrower’s request, and provided no Noticed Default or Event of Default shall then exist, subordinate the lien of the Project Loan Mortgage to the liens in favor of the condominium for common charges set forth in the Condominium Declaration pursuant to the Condominium Subordination Agreement, upon the satisfaction of the conditions enumerated below:
(i) the NYTC Units Redemption shall have occurred in accordance with Section 7.46(a) hereofSecurity Instrument;
(iid) the Title Insurance Policy insuring the Project Loan Mortgage shall have been endorsed to provide affirmative insurance in the form of Exhibit N attached heretoall charges, to the effect that the Mortgaged Property constitutes a condominium validly created under the Condominium Actfees, Agent shall have received an assurance letter from the Title Companies in the form of Exhibit O hereto assessments and Agent shall have received an endorsement to the existing title policy to the effect that the spreading of the Project Loan Mortgage and the Building Loan Mortgage referred to below shall not effect the validity or priority of such Mortgages;
(iii) Borrower shall have duly executed and delivered, or caused to be duly executed and delivered, to Agent (a) a conditional assignment of Borrower’s rights reserves under the Condominium Documents (whether annual, monthly, regular, special or otherwise) that are payable by Borrower have been paid to the extent they are due and payable as of the date hereof;
e) there is no existing default or breach of any covenant or condition on the part of Borrower or, to Borrower’s knowledge, any other Person under any Condominium Document to the extent such default or breach would individually or in the form of Exhibit P hereto and (baggregate have a Material Adverse Effect;
f) to ▇▇▇▇▇▇▇▇’s knowledge, neither the Condominium Board nor any other party to a conditional resignation of each Condominium Document has any defense, set-off or counterclaim against Borrower or all or any portion of the Managers Property;
g) no conditions exist that, now or after notice or the passage of time, or both, would constitute an Event of Default (as defined in the Condominium DeclarationDocuments) of the condominium association in the form of Exhibit Q hereto;
(iv) Agent shall have received an opinion from counsel reasonably satisfactory to Agent which shall include opinions to the effect that (A) the Condominium Documents satisfy all applicable requirements of Governmental Authorities and have been duly executed and delivered and are enforceable against and by the Borrower, (B) all Legal Requirements relating to the formation of the condominium have been duly satisfied and, assuming the recording of the Condominium Declaration and the subordination of the Project Loan Mortgage and Building Loan Mortgage to the Condominium Declaration pursuant to the Condominium Subordination Agreement, the condominium has been duly and validly created and is existing in full force and effect, (C) the assignment referred to in clause (iii) of this subsection has been duly authorized, executed and delivered by Borrower and is enforceable against Borrower and (D) the resignations referred to in clause (iii) of this subsection are enforceable against said parties in accordance with their respective terms;
(v) the condominium which shall be created by under the Condominium Documents, together with and, to Borrower’s knowledge, shall have furnished to Agentno events exist that, at no cost now or expense to Agentafter notice or the passage of time, a blanket insurance policy complying with the applicable requirements contained in the Project Loan Mortgage;
(vi) the condominium association shall have (A) collaterally assigned its rights to Leases or both, would constitute an Event of rooftop and lobby spaces and agreed to deposit all Rents therefrom (to the extent of FC Member’s interest therein) into one of the Collection Accounts and (B) collaterally assigned the rights to excess casualty proceeds (to the extent of FC Member’s interest therein) to Agent for the benefit of Agent and Lenders, in each case pursuant to an agreement in form and substance reasonably satisfactory to Agent and Agent shall have received an opinion of counsel reasonably satisfactory to Agent as to the due authorization, execution and delivery and enforceability of such agreements and such other customary matters with respect thereto as Agent may reasonably require;
(vii) the Project Loan Mortgage shall have been spread to cover the Severance Subleases to which FC Member is a party and the Ground Lease shall be released from the lien thereof;
(viii) the Lease Assignment Default (as defined in the Ground LeaseCondominium Documents) shall by any Person other than Borrower under any of the Condominium Documents;
h) Borrower has no knowledge of any special assessments or pending assessments which have been duly executed and deliveredcalled for in writing to which Borrower would be subject under the Condominium Documents;
(ixi) Agent shall have received such other documents (including, without limitation, a title continuation), certificates, instruments, opinions or assurances as Agent may reasonably request; and
(x) Borrower shall have paid all reasonable out of pocket costs and expenses incurred by Agent in connection with the foregoing (including reasonable attorneys’ fees and disbursements).
(d) Borrower shall give Agent not less than ten (10) Business Days notice of any meeting of the condominium board and shall cause Agent or any representative thereof to be permitted to attend any such meeting. Upon reasonable notice by Agent, Borrower shall cause Agent or any representative thereof to be permitted to inspect the books and records members of the Condominium Board are listed on Schedule VIII attached hereto together with current contact information for each of Managers the same. Borrower has the right to appoint three (3) of the five (5) Condominium Board members pursuant to the Condominium Documents and each such person(s) appointed by ▇▇▇▇▇▇▇▇ is identified on Schedule VIII attached hereto;
j) the FC lien of the Condominium Board for assessments and interest thereon, if any, is subject to the Security Instrument and to the title to the Property obtained as a result of Managers foreclosure or conveyance in lieu of foreclosure as provided in the Condominium Documents;
k) Unit 1 and Unit 9 (as each such term is defined in the Condominium Documents)) (A) is a separate parcel of real property from Units 2 through 8 and Unit 10, (B) is not owned by ▇▇▇▇▇▇▇▇, and (C) has been assigned a separate tax lot number by the taxing authority;
l) there are no regularly scheduled common charges, fees, assessments or other similar amounts due or payable by Borrower under the Condominium Documents; and
m) there is no suit, action, proceeding or audit pending or threatened against or affecting Borrower or the Property under the Condominium Documents at law or in equity or before or by any court, administrative agency, or other Governmental Authority which brings into question that the validity of the Condominium or the Condominium Documents or which, if determined adversely against Borrower, would reasonably be likely to result in any Material Adverse Effect.
Appears in 1 contract
Sources: Loan Agreement (SITE Centers Corp.)
Condominium. (a) To (i) not amend or supplement Borrower has a 12.5492% aggregate percentage interest in the General Common Elements of the Condominium. Borrower has a proportionate interest in the Retail Common Elements, the Retail Limited Common Elements, the Commercial Limited Common Elements and the Commercial Common Elements as specified in the Condominium Documents without Agent’s prior approval, such approval not to be unreasonably withheld (Borrower and Agent hereby acknowledging and confirming that (x) subject to clause (y) of this parenthetical clause, Agent has approved the Condominium Declaration and the Condominium By-Laws substantially Documents. The remaining 87.4508% aggregate percentage interest in the form attached as Exhibit E to the Operating Agreement, as the same is to be amended in accordance with the First Amendment) and (y) Agent’s approval, not to be unreasonably withheld, shall be required with respect to all portions General Common Elements of the Condominium Declaration is owned as specified on Schedule I. The Borrower Unit and Condominium By-Laws not yet finalized and therefore not contained the Units owned by the other parties described in said amended Exhibit E this paragraph (e.g., Exhibits C, D and G of a) are the Condominium Declaration), (ii) cause the Condominium Documents to comply with all applicable Legal Requirements, (iii) cause the Condominium Documents to be filed only Units in the appropriate public offices and the condominium thereunder to be validly created on or prior to the achievement of Core and Shell Completion and (vi) from and after the date that the condominium is created, diligently enforce (and use diligent efforts to cause the condominium association to enforce) the second sentence of Section 1 of Article IX of the Condominium DeclarationCondominium.
(b) Without Each Condominium Document is in full force and effect and constitutes the prior consent binding obligation of AgentBorrower and, neither Borrower nor any Member shall abandon or change its plan for submission of the Mortgaged Property to the condominium form of ownershipBorrower's knowledge, each other party thereto.
(c) Agent shall, on Borrower’s request, and provided no Noticed Default or Event of Default shall then exist, subordinate the lien of the Project Loan Mortgage to the liens in favor of the condominium for common charges Except as expressly set forth in the Condominium Declaration pursuant Exception Report or which has previously been delivered to the Condominium Subordination AgreementLender, upon the satisfaction of the conditions enumerated below:
Borrower has not consented to any amendment or modification (i) the NYTC Units Redemption shall have occurred in accordance with Section 7.46(a) hereof;
(ii) the Title Insurance Policy insuring the Project Loan Mortgage shall have been endorsed to provide affirmative insurance in the form of Exhibit N attached hereto, to the effect that the Mortgaged Property constitutes a condominium validly created under the Condominium Act, Agent shall have received an assurance letter from the Title Companies in the form of Exhibit O hereto and Agent shall have received an endorsement to the existing title policy to the effect that the spreading of the Project Loan Mortgage and the Building Loan Mortgage referred to below shall not effect the validity oral or priority of such Mortgages;
(iii) Borrower shall have duly executed and delivered, or caused to be duly executed and delivered, to Agent (a) a conditional assignment of Borrower’s rights under the Condominium Documents in the form of Exhibit P hereto and (b) a conditional resignation of each of the Managers (as defined in the Condominium Declarationwritten) of the condominium association in the form any of Exhibit Q hereto;
(iv) Agent shall have received an opinion from counsel reasonably satisfactory to Agent which shall include opinions to the effect that (A) the Condominium Documents satisfy all applicable requirements of Governmental Authorities and have been duly executed and delivered and are enforceable against and by the Borrower, (B) all Legal Requirements relating to the formation of the condominium have been duly satisfied and, assuming the recording of the Condominium Declaration and the subordination of the Project Loan Mortgage and Building Loan Mortgage to the Condominium Declaration pursuant to the Condominium Subordination Agreement, the condominium has been duly and validly created and is existing in full force and effect, (C) the assignment referred to in clause (iii) of this subsection has been duly authorized, executed and delivered by Borrower and is enforceable against Borrower and (D) the resignations referred to in clause (iii) of this subsection are enforceable against said parties in accordance with their respective terms;
(v) the condominium which shall be created by the Condominium Documents, together with nor, to Borrower's knowledge, shall have furnished to Agent, at no cost does any such amendment or expense to Agent, a blanket insurance policy complying with the applicable requirements contained in the Project Loan Mortgage;
modification (vioral or written) the condominium association shall have (A) collaterally assigned its rights to Leases of rooftop and lobby spaces and agreed to deposit all Rents therefrom (to the extent of FC Member’s interest therein) into one any of the Collection Accounts and (B) collaterally assigned the rights to excess casualty proceeds (to the extent of FC Member’s interest therein) to Agent for the benefit of Agent and Lenders, in each case pursuant to an agreement in form and substance reasonably satisfactory to Agent and Agent shall have received an opinion of counsel reasonably satisfactory to Agent as to the due authorization, execution and delivery and enforceability of such agreements and such other customary matters with respect thereto as Agent may reasonably require;
(vii) the Project Loan Mortgage shall have been spread to cover the Severance Subleases to which FC Member is a party and the Ground Lease shall be released from the lien thereof;
(viii) the Lease Assignment (as defined in the Ground Lease) shall have been duly executed and delivered;
(ix) Agent shall have received such other documents (including, without limitation, a title continuation), certificates, instruments, opinions or assurances as Agent may reasonably request; and
(x) Borrower shall have paid all reasonable out of pocket costs and expenses incurred by Agent in connection with the foregoing (including reasonable attorneys’ fees and disbursements)Condominium Documents exist.
(d) No events exist which, now or after the passage of time, or both, would constitute a default by Borrower shall give Agent not less than ten (10) Business Days notice of under any meeting of the condominium board and shall Condominium Documents (unless such default would not cause Agent a Material Adverse Effect). In addition, to Borrower's knowledge, no events exist which, now or after the passage of time, or both, would constitute a default by any representative thereof to be permitted to attend party other than Borrower under any such meeting. Upon reasonable notice by Agent, Borrower shall cause Agent or any representative thereof to be permitted to inspect the books and records of the Board Condominium Documents (unless such default would not cause a Material Adverse Effect).
(e) Except as set forth in the Exception Report, there are no sums which are due and payable by Borrower under any of Managers the Condominium Documents to either the Association or the owners of the Units other than the Borrower Unit, which sums remain unpaid. In addition, except as set forth in the Exception Report, to Borrower's knowledge, there are no sums due and payable by the FC Board Association or the owners of Managers the Units other than the Borrower Unit and other than the residential Units under any of the Condominium Documents to Borrower, which sums remain unpaid.
(as each such term is defined in f) The current budgeted annual Common Charges for the Borrower Unit are $1,830,580.
(g) To Borrower's knowledge, there are no currently outstanding special assessments under the Condominium Documents), and, to Borrower's knowledge, none are presently contemplated.
(h) As of the date hereof, the sole members of the board of directors of the Association are ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, who was appointed by Borrower, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇, who were appointed by the Office Unit Owners, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, who represents the Residential Unit Owners. As of the date hereof, the Commercial Board is comprised of the Retail Board and the Office Board.
(i) To Borrower's knowledge, the Association has not encumbered the Common Elements or any other property of the Condominium; provided, however, that the Units other than the Borrower Units and the Common Elements appurtenant thereto may be encumbered by separate mortgage debt.
(j) No disputes between Borrower and the owners of the Units other than the Borrower Unit and/or the Association, and, to Borrower's knowledge, no dispute between the owners of the Units other than the Borrower Unit and the Association have been submitted to the board of directors of the Association or any other Person for resolution in accordance with the provisions of the Declaration.
(k) To Borrower's knowledge, there are no actions, whether voluntary or otherwise, pending against the owners of the Units other than the residential Units and other than the Borrower Unit or the Association pursuant to the bankruptcy or insolvency laws of the United States or any state thereof, and none has been threatened.
(l) Neither the Association nor the owners of the Units other than the Borrower Unit have any purchase, lease or other options or rights of first refusal with respect to the Property pursuant to the Condominium Documents or otherwise.
Appears in 1 contract
Sources: Loan Agreement (Alexanders Inc)
Condominium. (a) To (i) not amend or supplement The Borrower represents, warrants and covenants that the Condominium Documents without Agent’s prior approval, such approval not to be unreasonably withheld (Borrower and Agent hereby acknowledging and confirming that (x) subject to clause (y) of this parenthetical clause, Agent has approved the Condominium Declaration and the Condominium By-Laws substantially in the form attached as Exhibit E to the Operating Agreement, as the same is to be amended in accordance with the First Amendment) and (y) Agent’s approval, not to be unreasonably withheld, shall be required with respect to all portions of the Condominium Declaration easements and Condominium By-Laws not yet finalized other rights granted thereby are now valid and therefore not contained in said amended Exhibit E (e.g., Exhibits C, D and G of the Condominium Declaration), (ii) cause the Condominium Documents to comply with all applicable Legal Requirements, (iii) cause the Condominium Documents to be filed in the appropriate public offices and the condominium thereunder to be validly created on or prior to the achievement of Core and Shell Completion and (vi) from and after the date that the condominium is created, diligently enforce (and use diligent efforts to cause the condominium association to enforce) the second sentence of Section 1 of Article IX of the Condominium Declarationsubsisting.
(b) Without The Borrower will cause the Property Owner to fully and faithfully pay when due and payable the assessments, common charges and other charges mentioned in and made payable by the Property Owner under the Condominium Documents, and shall cause the Property Owner to fully and faithfully perform all obligations on the part of the Property Owner to be performed under the Condominium Documents in the time and manner therein prescribed.
(c) The Borrower shall cause the Property Owner to do all things necessary to preserve and keep unimpaired its rights, powers and privileges under the Condominium Documents and to prevent the termination or expiration of the Condominium Documents, or the withdrawal of the Condominium from a condominium form of ownership, to the end that the Property Owner may enjoy all of the rights granted to it as a party to the Condominium Documents.
(d) The Borrower will promptly notify Agent of any failure by the Property Owner to comply with the Condominium Documents.
(e) The Borrower will (i) promptly notify Agent of the receipt by the Borrower, the Manager, the Member or the Property Owner of any notice asserting or claiming a default by the Property Owner under, or lack of compliance by the Property Owner with, the Condominium Documents, (ii) promptly notify Agent of the receipt by the Borrower, the Manager, the Member or the Property Owner of any notice or request of a termination or purported termination of the Condominium Documents or of the Condominium or of or for the commencement or taking of or intent to commence to take any action to terminate the Condominium or the Condominium Documents or to withdraw the Condominium from the condominium ownership pursuant to applicable law or to seek any action for partition of the Condominium, (iii) promptly notify Agent of the receipt by the Borrower, the Manager, the Member or the Property Owner of any notice or request of a modification or change or proposed modification or change of or to the Condominium Documents, and (iv) promptly cause a copy of each such notice or request received by the Property Owner, the Manager, the Member or the Borrower to be delivered to Agent. The Borrower will promptly notify Agent of the institution of a proceeding to partition the Condominium or withdraw same from condominium ownership pursuant to applicable law, and of the institution of any such partition or withdrawal proceeding. The Borrower will promptly deliver to Agent a copy of each notice, pleading, brief and preliminary, interim and final determination or decision and other papers received by it in each such partition or withdrawal proceeding.
(f) The Borrower will not, without the prior consent of Agent, neither Borrower nor allow or suffer the Property Owner to wholly or partially terminate, modify, subordinate or surrender or suffer or permit in whole or in part any Member shall abandon termination, modification, surrender or change its plan for submission expiration of any of the Mortgaged Condominium Documents, or withdraw or cause to permit the withdrawal of the Condominium by operation of law or otherwise from condominium ownership pursuant to applicable law, or allow or suffer the Property Owner to commence or prosecute any action or proceeding to partition the condominium form of ownershipCondominium or cause or permit the Condominium to be partitioned pursuant to applicable law or otherwise.
(cg) The Borrower will, within 30 days after receipt of a written demand from Agent, obtain from the board, association or other Person charged with administering the Condominium Documents and deliver to Agent shalla duly signed and acknowledged certificate certifying that the Condominium Documents are unmodified and in full force and effect (or, on Borrower’s requestif the same have been modified in compliance with the Mezzanine Mortgage Loan Documents and this Agreement, that the Condominium Documents are in full force and provided effect as so modified and that there have been no Noticed Default or Event of Default shall then existother modifications), subordinate stating the lien of dates to which the Project Loan Mortgage to the liens in favor of the condominium for assessments, common charges set forth in the Condominium Declaration pursuant to the Condominium Subordination Agreement, upon the satisfaction of the conditions enumerated below:
(i) the NYTC Units Redemption shall have occurred in accordance with Section 7.46(a) hereof;
(ii) the Title Insurance Policy insuring the Project Loan Mortgage shall have been endorsed to provide affirmative insurance in the form of Exhibit N attached hereto, to the effect that the Mortgaged Property constitutes a condominium validly created and other charges payable under the Condominium Act, Agent shall Documents have received an assurance letter from the Title Companies in the form of Exhibit O hereto been paid and Agent shall have received an endorsement stating whether to the existing title policy certifying party's knowledge the Property Owner is in compliance with the Condominium Documents or, if not, specifying each default or failure of compliance of which the certifying party has knowledge. The Borrower will, promptly upon receipt thereof by the Borrower, the Manager, the Member or the Property Owner, furnish Agent with a copy of all notices and statements, however characterized, issued by the board, association or other Person charged with administering the Condominium Documents relating to the effect that Condominium.
(h) The Borrower will not permit or suffer the spreading Property Owner to exercise any of the Project Loan Mortgage and the Building Loan Mortgage referred to below shall not effect the validity or priority of such Mortgages;
(iii) Borrower shall have duly executed and delivered, or caused to be duly executed and delivered, to Agent (a) a conditional assignment of Borrower’s Property Owner's rights under the Condominium Documents in Documents, or, to the form of Exhibit P hereto and (b) a conditional resignation of each extent not prohibited by applicable laws, vote at any meeting of the Managers (as defined in the Condominium Declaration) of the condominium board, association in the form of Exhibit Q hereto;
(iv) Agent shall have received an opinion from counsel reasonably satisfactory to Agent which shall include opinions to the effect that (A) the Condominium Documents satisfy all applicable requirements of Governmental Authorities and have been duly executed and delivered and are enforceable against and by the Borrower, (B) all Legal Requirements relating to the formation of the condominium have been duly satisfied and, assuming the recording of the Condominium Declaration and the subordination of the Project Loan Mortgage and Building Loan Mortgage to the Condominium Declaration pursuant to the Condominium Subordination Agreement, the condominium has been duly and validly created and is existing in full force and effect, (C) the assignment referred to in clause (iii) of this subsection has been duly authorized, executed and delivered by Borrower and is enforceable against Borrower and (D) the resignations referred to in clause (iii) of this subsection are enforceable against said parties in accordance or other Person charged with their respective terms;
(v) the condominium which shall be created by administering the Condominium Documents, together in any way that is inconsistent with Borrowerits duties or obligations under the Mezzanine Mortgage Loan Documents or this Agreement. Notwithstanding the foregoing, shall have furnished to Agentafter the occurrence of an Event of Default hereunder and for so long as such Event of Default is continuing, the Borrower will notify Agent of all meetings of the board, association or other Person charged with administering the Condominium Documents, at no cost or expense to Agentleast five (5) Business Days prior thereto, a blanket insurance policy complying with the applicable requirements contained in the Project Loan Mortgage;
(vi) the condominium association shall have (A) collaterally assigned its rights to Leases of rooftop and lobby spaces and agreed to deposit all Rents therefrom (and, to the extent not prohibited by applicable law, the Borrower will cause the Property Owner to exercise all of FC Member’s interest therein) into one of the Collection Accounts and (B) collaterally assigned the its rights to excess casualty proceeds (to the extent of FC Member’s interest therein) to Agent for the benefit of Agent and Lenders, in each case pursuant to an agreement in form and substance reasonably satisfactory to Agent and Agent shall have received an opinion of counsel reasonably satisfactory to Agent as to the due authorization, execution and delivery and enforceability of such agreements and such other customary matters with respect thereto as Agent may reasonably require;
(vii) the Project Loan Mortgage shall have been spread to cover the Severance Subleases to which FC Member is a party and the Ground Lease shall be released from the lien thereof;
(viii) the Lease Assignment (as defined in the Ground Lease) shall have been duly executed and delivered;
(ix) Agent shall have received such other documents (including, without limitation, a title continuation), certificates, instruments, opinions or assurances as Agent may reasonably request; and
(x) Borrower shall have paid all reasonable out of pocket costs and expenses incurred by Agent in connection with the foregoing (including reasonable attorneys’ fees and disbursements).
(d) Borrower shall give Agent not less than ten (10) Business Days notice of any meeting of the condominium board and shall cause Agent or any representative thereof to be permitted to attend any such meeting. Upon reasonable notice by Agent, Borrower shall cause Agent or any representative thereof to be permitted to inspect the books and records of the Board of Managers and the FC Board of Managers (as each such term is defined in under the Condominium Documents), and vote at all meetings of the board, association or other Person charged with administering the Condominium Documents, in accordance with any instructions delivered by Agent to the Borrower.
Appears in 1 contract
Condominium. From and after the consummation of a Condominium Conversion, Borrower shall comply with each of the following:
(a) To (i) not amend or supplement Borrower shall pay all common charges and other assessments as required by the Condominium Documents in respect of the remaining Property and shall promptly, following demand, exhibit to Lender receipts for all such payments;
(b) Borrower shall not, unless directed otherwise in writing by Lender, without Agentfirst obtaining Lender’s prior approval, such approval not to be unreasonably withheld (Borrower and Agent hereby acknowledging and confirming that (x) subject to clause (y) of this parenthetical clause, Agent has approved the Condominium Declaration and the Condominium By-Laws substantially in the form attached as Exhibit E to the Operating Agreement, as the same is to be amended in accordance with the First Amendment) and (y) Agent’s approvalwritten consent, not to be unreasonably withheld, shall be required with respect (i) vote for, consent to all portions or permit to occur any modification of, or amendment to, any material provision of the Condominium Declaration and Condominium By-Laws Documents; provided, however, Lender’s approval shall not yet finalized and therefore not contained in said amended Exhibit E (e.g., Exhibits C, D and G of be required for amendments to the Condominium Declaration), Documents containing disclosures or other provisions required to be made by Legal Requirements; (ii) cause in the event of damage to or destruction of the Property, vote in opposition to a motion to repair, restore or rebuild, unless the Indebtedness will be repaid in full pursuant to Section 5.16 or Borrower is obligated to apply Loss Proceeds toward the repayment of the Loan pursuant to Section 5.16(d); (iii) partition or subdivide any Condominium Units, or combine any Condominium Unit with another Condominium Unit; (iv) consent to the termination of the Condominium; or (v) vote in favor of the imposition of special assessments for capital improvements pursuant to the Condominium Documents to comply with all applicable Legal Requirements, (iii) cause the Condominium Documents to be filed in the appropriate public offices and the condominium thereunder to be validly created on unless such capital improvements are otherwise permissible or prior to the achievement of Core and Shell Completion and (vi) from and after the date that the condominium is created, diligently enforce (and use diligent efforts to cause the condominium association to enforce) the second sentence of Section 1 of Article IX of the Condominium Declaration.
(b) Without the prior consent of Agent, neither Borrower nor any Member shall abandon or change its plan for submission of the Mortgaged Property to the condominium form of ownershipapproved hereunder.
(c) Agent shallBorrower shall fully and faithfully observe, on Borrower’s requestkeep and perform, in all material respects, each and provided no Noticed Default or Event of Default shall then existevery material requirement, subordinate the lien of the Project Loan Mortgage to the liens in favor of the condominium for common charges set forth in the Condominium Declaration pursuant to the Condominium Subordination Agreementcondition, upon the satisfaction of the conditions enumerated below:
(i) the NYTC Units Redemption shall have occurred in accordance with Section 7.46(a) hereof;
(ii) the Title Insurance Policy insuring the Project Loan Mortgage shall have been endorsed to provide affirmative insurance in the form of Exhibit N attached heretocovenant, to the effect that the Mortgaged Property constitutes a condominium validly created agreement and provisions under the Condominium Act, Agent shall have received an assurance letter from the Title Companies in the form of Exhibit O hereto Act and Agent shall have received an endorsement to the existing title policy to the effect that the spreading of the Project Loan Mortgage and the Building Loan Mortgage referred to below shall not effect the validity or priority of such Mortgages;
(iii) Borrower shall have duly executed and delivered, or caused to be duly executed and delivered, to Agent (a) a conditional assignment of Borrower’s rights under the Condominium Documents in on the form part of Exhibit P hereto Borrower to be observed, kept and (b) performed. Borrower shall promptly deliver to Lender a conditional resignation copy of each any notice of default received by Borrower with respect to any obligation of Borrower under the Managers (as defined in the Condominium Declaration) provisions of the condominium association in the form of Exhibit Q hereto;
(iv) Agent shall have received an opinion from counsel reasonably satisfactory to Agent which shall include opinions to the effect that (A) the Condominium Documents satisfy all applicable requirements of Governmental Authorities and have been duly executed and delivered and are enforceable against and by the Borrower, (B) all Legal Requirements relating to the formation of the condominium have been duly satisfied and, assuming the recording of or the Condominium Declaration and the subordination of the Project Loan Mortgage and Building Loan Mortgage to the Condominium Declaration pursuant to the Condominium Subordination Agreement, the condominium has been duly and validly created and is existing in full force and effect, (C) the assignment referred to in clause (iii) of this subsection has been duly authorized, executed and delivered by Borrower and is enforceable against Borrower and (D) the resignations referred to in clause (iii) of this subsection are enforceable against said parties in accordance with their respective terms;
(v) the condominium which shall be created by the Condominium Documents, together with Borrower, shall have furnished to Agent, at no cost or expense to Agent, a blanket insurance policy complying with the applicable requirements contained in the Project Loan Mortgage;
(vi) the condominium association shall have (A) collaterally assigned its rights to Leases of rooftop and lobby spaces and agreed to deposit all Rents therefrom (to the extent of FC Member’s interest therein) into one of the Collection Accounts and (B) collaterally assigned the rights to excess casualty proceeds (to the extent of FC Member’s interest therein) to Agent for the benefit of Agent and Lenders, in each case pursuant to an agreement in form and substance reasonably satisfactory to Agent and Agent shall have received an opinion of counsel reasonably satisfactory to Agent as to the due authorization, execution and delivery and enforceability of such agreements and such other customary matters with respect thereto as Agent may reasonably require;
(vii) the Project Loan Mortgage shall have been spread to cover the Severance Subleases to which FC Member is a party and the Ground Lease shall be released from the lien thereof;
(viii) the Lease Assignment (as defined in the Ground Lease) shall have been duly executed and delivered;
(ix) Agent shall have received such other documents (including, without limitation, a title continuation), certificates, instruments, opinions or assurances as Agent may reasonably request; and
(x) Borrower shall have paid all reasonable out of pocket costs and expenses incurred by Agent in connection with the foregoing (including reasonable attorneys’ fees and disbursements)Act.
(d) Borrower shall give Agent not less than ten (10) Business Days notice of any meeting of the condominium board and shall cause Agent or any representative thereof to be permitted to attend any such meeting. Upon reasonable notice by Agent, Borrower shall cause Agent or any representative thereof to be permitted to inspect the books and records of the Board of Managers and the FC Board of Managers (as each such term is defined in the Condominium Documents).
Appears in 1 contract
Sources: Loan Agreement (New York REIT, Inc.)
Condominium. (a) To (i) not amend In the event that either Brown properly exercises its option to purchase or supplement right of first offer under the Condominium Documents without Agent’s prior approvalBrown Lease, or the Tenant properly exercises its option to purchase or right of first offer under this Lease, and either of such approval not parties enter into a binding purchase and sale agreement, the Project will be subjected to be unreasonably withheld a two-unit (Borrower and Agent hereby acknowledging and confirming that each a “Unit”) condominium regime having the premises then leased by ▇▇▇▇▇ as one Unit (xthe “Brown Unit”) subject to clause (y) of this parenthetical clause, Agent has approved the Condominium Declaration and the Condominium ByPremises then leased by the Tenant (including, any Additional Space, if any, leased in connection with the Additional Space ROFR) as a second Unit (collectively, the “Tenant Unit”). Within forty-Laws substantially five (45) days after the exercise by Tenant or Brown of the Tenant Unit Purchase Option, Landlord will submit to Brown and Tenant (i) a proposed set of condominium documents with the aforesaid two-unit condominium and with each unit having equal voting rights in the form attached condominium association, including a Declaration of Condominium, Plats and Plans and such other documents as Exhibit E are required to subject the Project to the Operating Agreement“Rhode Island Condominium Act”, as R.I. Gen. Laws Chapter 34-36.1 (collectively the same is to be amended in accordance with the First Amendment) and (y) Agent’s approval, not to be unreasonably withheld, shall be required with respect to all portions of the “Condominium Declaration and Condominium By-Laws not yet finalized and therefore not contained in said amended Exhibit E (e.g., Exhibits C, D and G of the Condominium DeclarationDocuments”), (ii) cause a proposed long term parking lease between the Parking Garage Operator and the “Condominium Association” under the Condominium Documents to comply with all applicable Legal Requirements, (the “Condo Parking Lease”) and (iii) cause a Notice of the Condo Parking Lease in recordable form. Such Condominium Documents to Documents, Condo Parking Lease and Notice of the Condo Parking Lease shall be filed in the appropriate public offices and the condominium thereunder to be validly created on or prior subject to the achievement of Core and Shell Completion and (vi) from and after the date that the condominium is created, diligently enforce (and use diligent efforts to cause the condominium association to enforce) the second sentence of Section 1 of Article IX approval of the Condominium DeclarationTenant and Brown, each of which approvals will not be unreasonably withheld or delayed.
(b) Without the prior consent of Agent, neither Borrower nor any Member shall abandon or change its plan for submission of the Mortgaged Property to the condominium form of ownership.
(c) Agent shall, on Borrower’s request, and provided no Noticed Default or Event of Default shall then exist, subordinate the lien of the Project Loan Mortgage to the liens in favor of the condominium for common charges set forth in the Condominium Declaration pursuant to the Condominium Subordination Agreement, upon the satisfaction of the conditions enumerated below:
(i) the NYTC Units Redemption shall have occurred in accordance with Section 7.46(a) hereof;
(ii) In the Title Insurance Policy insuring event that, either Brown or Tenant has exercised its option to purchase or right of first offer, in connection with the Project Loan Mortgage shall have been endorsed to provide affirmative insurance in the form of Exhibit N attached hereto, to the effect that the Mortgaged Property constitutes a condominium validly created under the Condominium Act, Agent shall have received an assurance letter from the Title Companies in the form of Exhibit O hereto and Agent shall have received an endorsement to the existing title policy to the effect that the spreading sale of the Project Loan Mortgage first Unit to be sold, the approved Condominium Documents, the approved Condo Parking Lease and the Building Loan Mortgage referred to below approved Notice of the Condo Parking Lease shall not effect the validity or priority of such Mortgages;
(iii) Borrower shall have duly be executed and delivered(where appropriate) recorded with the City of Providence Land Evidence Records. In such event, or caused the Landlord shall cause all Mortgagees and other required parties to be duly executed recognize the Tenant’s Options and deliveredto take such steps, to Agent (a) a conditional assignment of Borrower’s rights under the Condominium Documents in the form of Exhibit P hereto and (b) a conditional resignation of each of the Managers (as defined in the Condominium Declaration) of the condominium association in the form of Exhibit Q hereto;
(iv) Agent shall have received an opinion from counsel reasonably satisfactory to Agent which shall include opinions to the effect that (A) the Condominium Documents satisfy all applicable requirements of Governmental Authorities and have been duly executed and delivered and are enforceable against and by the Borrower, (B) all Legal Requirements relating to the formation of the condominium have been duly satisfied and, assuming the recording of the Condominium Declaration and including without limitation the subordination of the Project Loan Mortgage and Building Loan Mortgage any mortgage to the Condominium Declaration pursuant to the Condominium Subordination Agreement, the condominium has been duly and validly created and is existing in full force and effect, (C) the assignment referred to in clause (iii) of this subsection has been duly authorized, executed and delivered by Borrower and is enforceable against Borrower and (D) the resignations referred to in clause (iii) of this subsection are enforceable against said parties in accordance with their respective terms;
(v) the condominium which shall be created by the Condominium Documents, together with Borrower, shall have furnished as may be reasonably necessary to Agent, at no cost or expense effectuate the exercise of such Options. Notwithstanding anything to Agent, a blanket insurance policy complying with the applicable requirements contrary contained in this Lease, the Tenant’s Options to purchase shall not expire if the Project Loan Mortgage;
(vi) the condominium association shall have (A) collaterally assigned its rights to Leases of rooftop and lobby spaces and agreed to deposit all Rents therefrom (to the extent of FC Member’s interest therein) into one of the Collection Accounts and (B) collaterally assigned the rights to excess casualty proceeds (to the extent of FC Member’s interest therein) to Agent for the benefit of Agent and Lenders, in each case pursuant to an agreement in form and substance reasonably satisfactory to Agent and Agent shall have received an opinion of counsel reasonably satisfactory to Agent as to the due authorization, execution and delivery and enforceability of such agreements and such other customary matters with respect thereto as Agent may reasonably require;
(vii) the Project Loan Mortgage shall have been spread to cover the Severance Subleases to which FC Member is a party and the Ground Lease shall be released from the lien thereof;
(viii) the Lease Assignment (as defined in the Ground Lease) shall have been duly executed and delivered;
(ix) Agent shall have received such other documents (including, without limitation, a title continuation), certificates, instruments, opinions or assurances as Agent may reasonably request; and
(x) Borrower shall have paid all reasonable out of pocket costs and expenses incurred foreclosed upon by Agent in connection with the foregoing (including reasonable attorneys’ fees and disbursements)any Mortgagee.
(d) Borrower shall give Agent not less than ten (10) Business Days notice of any meeting of the condominium board and shall cause Agent or any representative thereof to be permitted to attend any such meeting. Upon reasonable notice by Agent, Borrower shall cause Agent or any representative thereof to be permitted to inspect the books and records of the Board of Managers and the FC Board of Managers (as each such term is defined in the Condominium Documents).
Appears in 1 contract
Sources: Lease
Condominium. (a) To (i) not amend or supplement As it relates to the Condominium Documents without Agent’s prior approvalcreated pursuant to the Declaration (Master), such approval not to be unreasonably withheld (Borrower and Agent hereby acknowledging and confirming that (x) subject to clause (y) of this parenthetical clause, Agent has approved the Condominium Declaration and the Condominium By-Laws substantially a 55.2278% aggregate percentage interest in the form attached as Exhibit E to the Operating Agreement, as the same is to be amended in accordance with the First Amendment) and (y) Agent’s approval, not to be unreasonably withheld, shall be required with respect to all portions Common Elements of the Condominium Declaration and the remaining 44.7722% aggregate percentage interest in the Common Elements is owned entirely by the Sub-Units. The Condominium By-Laws not yet finalized Units owned by Borrower and therefore not contained the Residential Master Unit are the only Condominium Units in said amended Exhibit E (e.g., Exhibits C, D and G of the Condominium Declaration), (ii) cause the Condominium Documents to comply with all applicable Legal Requirements, (iii) cause the Condominium Documents to be filed in the appropriate public offices and the condominium thereunder to be validly created on or prior pursuant to the achievement of Core and Shell Completion and Declaration (vi) from and after the date that the condominium is created, diligently enforce (and use diligent efforts to cause the condominium association to enforce) the second sentence of Section 1 of Article IX of the Condominium DeclarationMaster).
(b) Without As it relates to the prior consent of AgentCondominium created pursuant to the Declaration (Hotel-Residential), neither Borrower nor any Member shall abandon or change its plan for submission has a 61.2195% aggregate percentage interest in the Common Elements of the Mortgaged Property Condominium and the remaining 38.7805% aggregate percentage interest in the Common Elements is owned entirely by the owners of the Sub-Units. The Condominium Unit owned by Borrower and the Sub-Units are the only Condominium Units in the Condominium created pursuant to the condominium form of ownershipDeclaration (Hotel-Residential).
(c) Agent shall, on Borrower’s request, and provided no Noticed Default or Event of Default shall then exist, subordinate the lien of the Project Loan Mortgage to the liens in favor of the condominium for common charges set forth in the Each Condominium Declaration pursuant to the Condominium Subordination Agreement, upon the satisfaction of the conditions enumerated below:
(i) the NYTC Units Redemption shall have occurred in accordance with Section 7.46(a) hereof;
(ii) the Title Insurance Policy insuring the Project Loan Mortgage shall have been endorsed to provide affirmative insurance in the form of Exhibit N attached hereto, to the effect that the Mortgaged Property constitutes a condominium validly created under the Condominium Act, Agent shall have received an assurance letter from the Title Companies in the form of Exhibit O hereto and Agent shall have received an endorsement to the existing title policy to the effect that the spreading of the Project Loan Mortgage and the Building Loan Mortgage referred to below shall not effect the validity or priority of such Mortgages;
(iii) Borrower shall have duly executed and delivered, or caused to be duly executed and delivered, to Agent (a) a conditional assignment of Borrower’s rights under the Condominium Documents in the form of Exhibit P hereto and (b) a conditional resignation of each of the Managers (as defined in the Condominium Declaration) of the condominium association in the form of Exhibit Q hereto;
(iv) Agent shall have received an opinion from counsel reasonably satisfactory to Agent which shall include opinions to the effect that (A) the Condominium Documents satisfy all applicable requirements of Governmental Authorities and have been duly executed and delivered and are enforceable against and by the Borrower, (B) all Legal Requirements relating to the formation of the condominium have been duly satisfied and, assuming the recording of the Condominium Declaration and the subordination of the Project Loan Mortgage and Building Loan Mortgage to the Condominium Declaration pursuant to the Condominium Subordination Agreement, the condominium has been duly and validly created and Document is existing in full force and effecteffect in all material respects and constitutes the binding obligation of Borrower and, (C) the assignment referred to in clause (iii) of this subsection has been duly authorizedBorrower's knowledge, executed and delivered by Borrower and is enforceable against Borrower and (D) the resignations referred to in clause (iii) of this subsection are enforceable against said parties in accordance with their respective terms;
(v) the condominium which shall be created by the Condominium Documents, together with Borrower, shall have furnished to Agent, at no cost or expense to Agent, a blanket insurance policy complying with the applicable requirements contained in the Project Loan Mortgage;
(vi) the condominium association shall have (A) collaterally assigned its rights to Leases of rooftop and lobby spaces and agreed to deposit all Rents therefrom (to the extent of FC Member’s interest therein) into one of the Collection Accounts and (B) collaterally assigned the rights to excess casualty proceeds (to the extent of FC Member’s interest therein) to Agent for the benefit of Agent and Lenders, in each case pursuant to an agreement in form and substance reasonably satisfactory to Agent and Agent shall have received an opinion of counsel reasonably satisfactory to Agent as to the due authorization, execution and delivery and enforceability of such agreements and such other customary matters with respect thereto as Agent may reasonably require;
(vii) the Project Loan Mortgage shall have been spread to cover the Severance Subleases to which FC Member is a party and the Ground Lease shall be released from the lien thereof;
(viii) the Lease Assignment (as defined in the Ground Lease) shall have been duly executed and delivered;
(ix) Agent shall have received such other documents (including, without limitation, a title continuation), certificates, instruments, opinions or assurances as Agent may reasonably request; and
(x) Borrower shall have paid all reasonable out of pocket costs and expenses incurred by Agent in connection with the foregoing (including reasonable attorneys’ fees and disbursements)thereto.
(d) Except as expressly set forth in the Exception Report, Borrower shall give Agent has not less than ten consented to any amendment or modification (10oral or written) Business Days notice of any meeting of the condominium board and shall cause Agent or any representative thereof to be permitted to attend any such meeting. Upon reasonable notice by Agent, Borrower shall cause Agent or any representative thereof to be permitted to inspect the books and records of the Board of Managers and the FC Board of Managers (as each such term is defined in the Condominium Documents, nor, to Borrower's knowledge, does any such amendment or modification (oral or written) of any of the Condominium Documents exist.
(e) To Borrower's knowledge, no events exist that, now or after the passage of time, or both, would constitute a default by Borrower under any of the Condominium Documents (unless such default would not cause or reasonably be expected to result in a Material Adverse Effect). In addition, to Borrower's knowledge, no events exist that, now or after the passage of time, or both, would constitute a default by any Person other than Borrower under any of the Condominium Documents (unless such default would not cause or reasonably be expected to result in a Material Adverse Effect).
(f) Except as set forth in the Exception Report, there are no sums that are due and payable by Borrower under any of the Condominium Documents to either the Condominium Associations or the owners of the Condominium Units other than the Condominium Units owned by Borrower, which sums remain unpaid. In addition, except as set forth in the Exception Report, to Borrower's knowledge, there are no sums due and payable by the Condominium Associations or the owners of the Condominium Units other than the Condominium Units owned by Borrower under any of the Condominium Documents to either Borrower or to the Condominium Associations, which sums remain unpaid.
(g) As of the date hereof, the assessments assessed against the Property under the Condominium Documents equal $84,545.87 for the Condominium created pursuant to the Declaration (Master) and $5,698.51 for the Hotel Master Unit pursuant to the Declaration (Hotel-Residential), payable monthly in equal amounts. 49125-481/Block 21 (TX)
(h) To Borrower's knowledge, there are no currently outstanding special assessments under the Condominium Documents, and, to Borrower's knowledge, none are presently contemplated.
(i) To Borrower's knowledge, there are no anticipated capital improvements or repairs presently being undertaken to the Common Elements or any other property of the Condominiums and, to Borrower's knowledge, the Condominium Associations do not presently contemplate undertaking any such capital improvements or repairs except as required by the PIP referenced in the Exception Report.
(j) As of the Closing Date, the sole members of the board of directors of Block 21 Master Condominium Community, Inc. (i.e., Association created pursuant to the Declaration (Master)) are ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III and ▇▇▇▇▇▇ ▇▇▇▇, all of whom were appointed by Borrower.
(k) As of the Closing Date, the sole members of the board of directors of Block 21 Condominium Community, Inc. (i.e., Association created pursuant to the Declaration (Hotel-Residential)) are (i) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III and ▇▇▇▇▇▇ ▇▇▇▇, all of whom were appointed by Borrower and (ii) ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ Land, who were appointed by the owners of the Sub-Units.
(l) To Borrower's knowledge, the Condominium Associations have not incurred any debts and has not encumbered the Common Elements or any other property of the Condominiums.
(m) Except as set forth on the Exception Report, the Condominium Associations have not entered into any management or maintenance agreements with respect to the Common Elements or any other property of the Condominium.
(n) No disputes between Borrower and the owners of the Condominium Units other than the Condominium Units owned by Borrower and/or the Condominium Associations that could result in a Material Adverse Effect, and, to Borrower's knowledge, no dispute between the owners of the Condominium Units other than the Condominium Units owned by Borrower and the Condominium Associations, which could result in a Material Adverse Effect, have been submitted to the board of directors of the Condominium Associations or any other Person for resolution in accordance with the provisions of the Condominium Documents.
(o) To Borrower's knowledge, there are no actions, whether voluntary or otherwise, pending against the owners of the Condominium Units other than the Condominium Units owned by Borrower or the Condominium Associations pursuant to the bankruptcy or insolvency laws of the United States or any state thereof, and none has been threatened.
(p) Neither the Condominium Associations nor the owners of the Condominium Units other than the Condominium Units owned by Borrower have any purchase, lease or other options or rights of first refusal with respect to the Property pursuant to the Condominium Documents or otherwise.
Appears in 1 contract
Condominium. From and after the consummation of a Condominium Conversion, Borrower shall cause the Mortgage Borrower to comply with each of the following:
(a) To (i) not amend or supplement Borrower shall cause Mortgage Borrower to pay all common charges and other assessments as required by the Condominium Documents in respect of the remaining Property and shall promptly, following demand, exhibit to Lender receipts for all such payments;
(b) Borrower shall not permit Mortgage Borrower to, unless directed otherwise in writing by Lender, without Agentfirst obtaining Lender’s prior approval, such approval not to be unreasonably withheld (Borrower and Agent hereby acknowledging and confirming that (x) subject to clause (y) of this parenthetical clause, Agent has approved the Condominium Declaration and the Condominium By-Laws substantially in the form attached as Exhibit E to the Operating Agreement, as the same is to be amended in accordance with the First Amendment) and (y) Agent’s approvalwritten consent, not to be unreasonably withheld, shall be required with respect (i) vote for, consent to all portions or permit to occur any modification of, or amendment to, any material provision of the Condominium Declaration and Condominium By-Laws Documents; provided, however, Lender’s approval shall not yet finalized and therefore not contained in said amended Exhibit E (e.g., Exhibits C, D and G of be required for amendments to the Condominium Declaration), Documents containing disclosures or other provisions required to be made by Legal Requirements; (ii) cause in the event of damage to or destruction of the Property, vote in opposition to a motion to repair, restore or rebuild, unless the Indebtedness will be repaid in full pursuant to Section 5.16 or Mortgage Borrower is obligated to apply Loss Proceeds toward the repayment of the Loan pursuant to Section 5.16(d) of the Mortgage Loan Agreement; (iii) partition or subdivide any Condominium Units, or combine any Condominium Unit with another Condominium Unit; (iv) consent to the termination of the Condominium; or (v) vote in favor of the imposition of special assessments for capital improvements pursuant to the Condominium Documents to comply with all applicable Legal Requirements, (iii) cause the Condominium Documents to be filed in the appropriate public offices and the condominium thereunder to be validly created on unless such capital improvements are otherwise permissible or prior to the achievement of Core and Shell Completion and (vi) from and after the date that the condominium is created, diligently enforce (and use diligent efforts to cause the condominium association to enforce) the second sentence of Section 1 of Article IX of the Condominium Declaration.
(b) Without the prior consent of Agent, neither Borrower nor any Member shall abandon or change its plan for submission of the Mortgaged Property to the condominium form of ownershipapproved hereunder.
(c) Agent shallBorrower shall cause Mortgage Borrower to fully and faithfully observe, on Borrower’s requestkeep and perform, in all material respects, each and provided no Noticed Default or Event of Default shall then existevery material requirement, subordinate the lien of the Project Loan Mortgage to the liens in favor of the condominium for common charges set forth in the Condominium Declaration pursuant to the Condominium Subordination Agreementcondition, upon the satisfaction of the conditions enumerated below:
(i) the NYTC Units Redemption shall have occurred in accordance with Section 7.46(a) hereof;
(ii) the Title Insurance Policy insuring the Project Loan Mortgage shall have been endorsed to provide affirmative insurance in the form of Exhibit N attached heretocovenant, to the effect that the Mortgaged Property constitutes a condominium validly created agreement and provisions under the Condominium Act, Agent shall have received an assurance letter from the Title Companies in the form of Exhibit O hereto Act and Agent shall have received an endorsement to the existing title policy to the effect that the spreading of the Project Loan Mortgage and the Building Loan Mortgage referred to below shall not effect the validity or priority of such Mortgages;
(iii) Borrower shall have duly executed and delivered, or caused to be duly executed and delivered, to Agent (a) a conditional assignment of Borrower’s rights under the Condominium Documents in on the form part of Exhibit P hereto Mortgage Borrower to be observed, kept and (b) performed. Borrower shall promptly deliver to Lender a conditional resignation copy of each any notice of default received by Borrower with respect to any obligation of Borrower under the Managers (as defined in the Condominium Declaration) provisions of the condominium association in the form of Exhibit Q hereto;
(iv) Agent shall have received an opinion from counsel reasonably satisfactory to Agent which shall include opinions to the effect that (A) the Condominium Documents satisfy all applicable requirements of Governmental Authorities and have been duly executed and delivered and are enforceable against and by the Borrower, (B) all Legal Requirements relating to the formation of the condominium have been duly satisfied and, assuming the recording of or the Condominium Declaration and the subordination of the Project Loan Mortgage and Building Loan Mortgage to the Condominium Declaration pursuant to the Condominium Subordination Agreement, the condominium has been duly and validly created and is existing in full force and effect, (C) the assignment referred to in clause (iii) of this subsection has been duly authorized, executed and delivered by Borrower and is enforceable against Borrower and (D) the resignations referred to in clause (iii) of this subsection are enforceable against said parties in accordance with their respective terms;
(v) the condominium which shall be created by the Condominium Documents, together with Borrower, shall have furnished to Agent, at no cost or expense to Agent, a blanket insurance policy complying with the applicable requirements contained in the Project Loan Mortgage;
(vi) the condominium association shall have (A) collaterally assigned its rights to Leases of rooftop and lobby spaces and agreed to deposit all Rents therefrom (to the extent of FC Member’s interest therein) into one of the Collection Accounts and (B) collaterally assigned the rights to excess casualty proceeds (to the extent of FC Member’s interest therein) to Agent for the benefit of Agent and Lenders, in each case pursuant to an agreement in form and substance reasonably satisfactory to Agent and Agent shall have received an opinion of counsel reasonably satisfactory to Agent as to the due authorization, execution and delivery and enforceability of such agreements and such other customary matters with respect thereto as Agent may reasonably require;
(vii) the Project Loan Mortgage shall have been spread to cover the Severance Subleases to which FC Member is a party and the Ground Lease shall be released from the lien thereof;
(viii) the Lease Assignment (as defined in the Ground Lease) shall have been duly executed and delivered;
(ix) Agent shall have received such other documents (including, without limitation, a title continuation), certificates, instruments, opinions or assurances as Agent may reasonably request; and
(x) Borrower shall have paid all reasonable out of pocket costs and expenses incurred by Agent in connection with the foregoing (including reasonable attorneys’ fees and disbursements)Act.
(d) Borrower shall give Agent not less than ten (10) Business Days notice of any meeting of the condominium board and shall cause Agent or any representative thereof to be permitted to attend any such meeting. Upon reasonable notice by Agent, Borrower shall cause Agent or any representative thereof to be permitted to inspect the books and records of the Board of Managers and the FC Board of Managers (as each such term is defined in the Condominium Documents).
Appears in 1 contract
Condominium. (a) To (i) not amend or supplement the Condominium Documents without Agent’s prior approval, such approval not to be unreasonably withheld (Borrower and Agent hereby acknowledging and confirming that (x) subject to clause (y) of this parenthetical clause, Agent has approved the Condominium Declaration and the Condominium By-Laws substantially in the form attached as Exhibit E to the Operating Agreement, as the same is to be amended in accordance with the First Amendment) and (y) Agent’s approval, not to be unreasonably withheld, shall be required with respect to all portions of the Condominium Declaration and Condominium By-Laws not yet finalized and therefore not contained in said amended Exhibit E (e.g., Exhibits C, D and G of the Condominium Declaration), (ii) cause the Condominium Documents to comply with all applicable Legal Requirements, (iii) cause the Condominium Documents to be filed in the appropriate public offices and the condominium thereunder to be validly created on or prior to the achievement of Core and Shell Completion and (vi) from and after the date that the condominium is created, diligently enforce (and use diligent efforts to cause the condominium association to enforce) the second sentence of Section 1 of Article IX of the Condominium Declaration.
(b) Without the prior consent of Agent, neither Borrower nor any Member shall abandon or change its plan for submission of the Mortgaged Property to the condominium form of ownership.
(c) Agent shall, on Borrower’s request, and provided no Noticed Default or Event of Default shall then exist, subordinate the lien of the Project Building Loan Mortgage to the liens in favor of the condominium for common charges set forth in the Condominium Declaration pursuant to the Condominium Subordination Agreement, upon the satisfaction of the conditions enumerated below:
(i) the NYTC Units Redemption shall have occurred in accordance with Section 7.46(a) hereof;
(ii) the Title Insurance Policy insuring the Project Building Loan Mortgage shall have been endorsed to provide affirmative insurance in the form of Exhibit N attached hereto, to the effect that the Mortgaged Property constitutes a condominium validly created under the Condominium Act, Agent shall have received an assurance letter from the Title Companies in the form of Exhibit O hereto and Agent shall have received an endorsement to the existing title policy to the effect that the spreading of the Project Building Loan Mortgage and the Building Project Loan Mortgage referred to below shall not effect the validity or priority of such Mortgages;
(iii) Borrower shall have duly executed and delivered, or caused to be duly executed and delivered, to Agent (a) a conditional assignment of Borrower’s rights under the Condominium Documents in the form of Exhibit P hereto and (b) a conditional resignation of each of the Managers (as defined in the Condominium Declaration) of the condominium association in the form of Exhibit Q hereto;
(iv) Agent shall have received an opinion from counsel reasonably satisfactory to Agent which shall include opinions to the effect that (A) the Condominium Documents satisfy all applicable requirements of Governmental Authorities and have been duly executed and delivered and are enforceable against and by the Borrower, (B) all Legal Requirements relating to the formation of the condominium have been duly satisfied and, assuming the recording of the Condominium Declaration and the subordination of the Project Building Loan Mortgage and Building Project Loan Mortgage to the Condominium Declaration pursuant to the Condominium Subordination Agreement, the condominium has been duly and validly created and is existing in full force and effect, (C) the assignment referred to in clause (iii) of this subsection has been duly authorized, executed and delivered by Borrower and is enforceable against Borrower and (D) the resignations referred to in clause (iii) of this subsection are enforceable against said parties in accordance with their respective terms;
(v) the condominium which shall be created by the Condominium Documents, together with Borrower, shall have furnished to Agent, at no cost or expense to Agent, a blanket insurance policy complying with the applicable requirements contained in the Project Building Loan Mortgage;
(vi) the condominium association shall have (A) collaterally assigned its rights to Leases of rooftop and lobby spaces and agreed to deposit all Rents therefrom (to the extent of FC Member’s interest therein) into one of the Collection Accounts and (B) collaterally assigned the rights to excess casualty proceeds (to the extent of FC Member’s interest therein) to Agent for the benefit of Agent and Lenders, in each case pursuant to an agreement in form and substance reasonably satisfactory to Agent and Agent shall have received an opinion of counsel reasonably satisfactory to Agent as to the due authorization, execution and delivery and enforceability of such agreements and such other customary matters with respect thereto as Agent may reasonably require;
(vii) the Project Building Loan Mortgage shall have been spread to cover the Severance Subleases to which FC Member is a party and the Ground Lease shall be released from the lien thereof;
(viii) the Lease Assignment (as defined in the Ground Lease) shall have been duly executed and delivered;
(ix) Agent shall have received such other documents (including, without limitation, a title continuation), certificates, instruments, opinions or assurances as Agent may reasonably request; and
(x) Borrower shall have paid all reasonable out of pocket costs and expenses incurred by Agent in connection with the foregoing (including reasonable attorneys’ fees and disbursements).
(d) Borrower shall give Agent not less than ten (10) Business Days notice of any meeting of the condominium board and shall cause Agent or any representative thereof to be permitted to attend any such meeting. Upon reasonable notice by Agent, Borrower shall cause Agent or any representative thereof to be permitted to inspect the books and records of the Board of Managers and the FC Board of Managers (as each such term is defined in the Condominium Documents).
Appears in 1 contract
Condominium. (a) To (i) not amend or supplement the Condominium Documents without Agent’s prior approvalProvided there exists no Event of Default, such approval not to be unreasonably withheld (Borrower and Agent hereby acknowledging and confirming that (x) subject to clause (y) of this parenthetical clause, Agent has approved the Condominium Declaration and the Condominium By-Laws substantially in the form attached as Exhibit E to the Operating Agreement, as the same is to be amended in accordance with the First Amendment) and (y) Agent’s approval, not to be unreasonably withheld, shall be required with respect to all portions of the Condominium Declaration and Condominium By-Laws not yet finalized and therefore not contained in said amended Exhibit E (e.g., Exhibits C, D and G of the Condominium Declaration), (ii) cause the Condominium Documents to comply with all applicable Legal Requirements, (iii) cause the Condominium Documents to be filed in the appropriate public offices and the condominium thereunder to be validly created on or prior to the achievement of Core and Shell Completion and (vi) from and after the date that the condominium is created, diligently enforce (and use diligent efforts to cause the condominium association to enforce) the second sentence of Section 1 of Article IX of the Condominium Declaration.
(b) Without the prior consent of Agent, neither Borrower nor any Member shall abandon or change its plan for submission of the Mortgaged Property to the condominium form of ownership.
(c) Agent ------------ Mortgagee shall, on Borrower’s the Company's written request, and provided no Noticed Default or Event of Default shall then exist, subordinate the lien of the Project Loan this Mortgage to the liens in favor a declaration of the condominium for common charges set forth the Premises and shall execute the appropriate instruments (reasonably satisfactory in the Condominium Declaration pursuant all respects to the Condominium Subordination AgreementMortgagee) in recordable form to effect such subordination, upon the satisfaction of the conditions enumerated belowfollowing conditions:
(ia) the NYTC Units Redemption Mortgagee shall have occurred received and approved in accordance with Section 7.46(a) hereofall respects the documents required for the creation of a condominium, which documents shall be in proper form for recording or filing, as necessary, in the appropriate offices;
(iib) the Title Insurance Policy title policy insuring the Project Loan this Mortgage shall have been endorsed to provide affirmative insurance in the form of Exhibit N attached hereto, to the effect that the Mortgaged Property constitutes Premises constitute a condominium validly created under the Condominium Actcondominium laws of New York, Agent shall have received an assurance letter from and that the Title Companies release of any condominium unit will not affect the lien of this Mortgage except as to the unit so released and further insuring against any loss or damage by reason of the failure of any of the condominium units to be included in the form of Exhibit O hereto and Agent shall have received an endorsement condominium created pursuant to the existing title policy to the effect that the spreading condominium laws of the Project Loan Mortgage and the Building Loan Mortgage referred to below shall not effect the validity or priority of such MortgagesNew York;
(iiic) Borrower The Company shall have duly executed and delivered, or caused to be duly executed and delivered, to Agent (a) Mortgagee a conditional assignment of Borrower’s the Company's rights under the Condominium Documents condominium documents in form satisfactory to Mortgagee, conditional resignations of the officers and members of the board of directors of the applicable condominium association in form of Exhibit P hereto satisfactory to Mortgagee and (b) a conditional resignation of each termination of the Managers (as defined in the Condominium Declaration) management agreement, if any, covering all or any portion of the condominium association in the form of Exhibit Q heretosatisfactory to Mortgagee;
(ivd) Agent Mortgagee shall have received an opinion from the counsel reasonably satisfactory to Agent which shall include opinions for the Company to the effect that (A) the Condominium Documents condominium documents satisfy all applicable requirements of Governmental Authorities and have been duly executed and delivered and are enforceable against and by the Borrowerand, (B) all Legal Requirements relating where necessary, duly recorded or filed pursuant to the formation condominium laws of the condominium New York, all requirements of any applicable statute, rule or ordinance have been duly satisfied and, assuming the recording of the Condominium Declaration and the subordination of the Project Loan Mortgage and Building Loan Mortgage to the Condominium Declaration pursuant to the Condominium Subordination Agreement, the condominium has been duly and validly created and no filing, registration or other compliance with any federal or state securities law or other law or regulation will be required in connection with the sale of condominium units, or if such filing is existing in full force necessary, that the applicable law or regulation governing the same has been fully complied with and effectthe assignment, (C) the assignment resignations and agreements referred to in clause paragraph (iiic) of this subsection has Section have each been duly authorized, executed and delivered by Borrower the respective parties thereto and is enforceable against Borrower and (D) the resignations referred to in clause (iii) of this subsection are enforceable against said parties in accordance with their respective terms;
(ve) the condominium which shall be created by the Condominium Documents, together with Borrower, shall have furnished to Agent, at no cost or expense to Agent, a blanket insurance policy complying with the applicable requirements contained in the Project Loan Mortgage;
(vi) the condominium association shall have (A) collaterally assigned its rights to Leases of rooftop and lobby spaces and agreed to deposit all Rents therefrom (to the extent of FC Member’s interest therein) into one of the Collection Accounts and (B) collaterally assigned the rights to excess casualty proceeds (to the extent of FC Member’s interest therein) to Agent for the benefit of Agent and Lenders, in each case pursuant to an agreement in form and substance reasonably satisfactory to Agent and Agent shall have received an opinion of counsel reasonably satisfactory to Agent as to the due authorization, execution and delivery and enforceability of such agreements and such other customary matters with respect thereto as Agent may reasonably require;
(vii) the Project Loan Mortgage shall have been spread to cover the Severance Subleases to which FC Member is a party and the Ground Lease shall be released from the lien thereof;
(viii) the Lease Assignment (as defined in the Ground Lease) shall have been duly executed and delivered;
(ix) Agent Mortgagee shall have received such other documents (including, without limitation, a title continuation)documents, certificates, instruments, opinions or assurances as Agent it may reasonably request; and
(x) Borrower shall have paid all reasonable out of pocket costs and expenses incurred by Agent in connection with the foregoing (including reasonable attorneys’ fees and disbursements).
(d) Borrower shall give Agent not less than ten (10) Business Days notice of any meeting of the condominium board and shall cause Agent or any representative thereof to be permitted to attend any such meeting. Upon reasonable notice by Agent, Borrower shall cause Agent or any representative thereof to be permitted to inspect the books and records of the Board of Managers and the FC Board of Managers (as each such term is defined in the Condominium Documents).
Appears in 1 contract
Sources: Mortgage and Security Agreement (V I Technologies Inc)
Condominium. (a) To (i) not amend or supplement 69.01 Landlord hereby represents to Tenant, and Tenant acknowledges, that Landlord is contemplating the Condominium Documents without Agent’s prior approval, such approval not to be unreasonably withheld (Borrower and Agent hereby acknowledging and confirming that (x) subject to clause (y) of this parenthetical clause, Agent has approved the Condominium Declaration and the Condominium By-Laws substantially in the form attached as Exhibit E to the Operating Agreement, as the same is to be amended in accordance with the First Amendment) and (y) Agent’s approval, not to be unreasonably withheld, shall be required with respect to all portions conversion of the Condominium Declaration and Condominium By-Laws not yet finalized and therefore not contained in said amended Exhibit E (e.g., Exhibits C, D and G of the Condominium Declaration), (ii) cause the Condominium Documents to comply with all applicable Legal Requirements, (iii) cause the Condominium Documents to be filed in the appropriate public offices and the condominium thereunder to be validly created on or prior to the achievement of Core and Shell Completion and (vi) from and after the date that the condominium is created, diligently enforce (and use diligent efforts to cause the condominium association to enforce) the second sentence of Section 1 of Article IX of the Condominium Declaration.
(b) Without the prior consent of Agent, neither Borrower nor any Member shall abandon or change its plan for submission of the Mortgaged Property Building to the condominium form of ownership.
(c) Agent shallownership and that such form of ownership may be effective, if at all, before, on Borrower’s requestor after the Commencement Date, the effective date of such conversion being herein referred to as the "Conversion Effective Date."
69.02 Tenant further acknowledges that in connection with such conversion, Landlord may require an amendment to this lease which, inter alia, reflects the fact that the demised premises will become a condominium unit, and provided no Noticed Default or Event of Default shall then existaccordingly, subordinate will be assessed and billed for real estate tax and other purposes separately from the lien balance of the Project Loan Mortgage to Building; the liens in favor balance of the condominium for common charges set forth Building may be owned by one (1) or more persons or entities other than Landlord; and that from and after the Conversion Effective Date this lease and all of Tenant's rights and remedies hereunder shall be subject and subordinate in the Condominium Declaration pursuant all respects to the Condominium Subordination Agreement, upon the satisfaction of the conditions enumerated below:
(i) the NYTC Units Redemption shall have occurred in accordance with Section 7.46(a) hereof;
(ii) the Title Insurance Policy insuring the Project Loan Mortgage shall have been endorsed to provide affirmative insurance in the form of Exhibit N attached hereto, to the effect that the Mortgaged Property constitutes a condominium validly created under the Condominium Act, Agent shall have received an assurance letter from the Title Companies in the form of Exhibit O hereto and Agent shall have received an endorsement to the existing title policy to the effect that the spreading of the Project Loan Mortgage and the Building Loan Mortgage referred to below shall not effect the validity or priority of such Mortgages;
(iii) Borrower shall have duly executed and delivered, or caused to be duly executed and delivered, to Agent (a) a conditional assignment of Borrower’s rights under the Condominium Documents in the form of Exhibit P hereto and (b) a conditional resignation of each of the Managers (as defined in the Condominium Declarationhereinafter defined) of the condominium association in the form of Exhibit Q hereto;
(iv) Agent shall have received an opinion from counsel reasonably satisfactory to Agent which shall include opinions to the effect that (A) the Condominium Documents satisfy and Tenant, and all applicable requirements of Governmental Authorities persons and have been duly executed and delivered and are enforceable against and by the Borrowerentities claiming by, (B) all Legal Requirements relating to the formation of the condominium have been duly satisfied andthrough or under Tenant, assuming the recording of the Condominium Declaration and the subordination of the Project Loan Mortgage and Building Loan Mortgage to the Condominium Declaration pursuant to the Condominium Subordination Agreement, the condominium has been duly and validly created and is existing in full force and effect, (C) the assignment referred to in clause (iii) of this subsection has been duly authorized, executed and delivered by Borrower and is enforceable against Borrower and (D) the resignations referred to in clause (iii) of this subsection are enforceable against said parties in accordance with their respective terms;
(v) the condominium which shall be created bound in all respects by the Condominium Documents, together with Borrower, shall have furnished to Agent, at no cost or expense to Agent, a blanket insurance policy complying with the applicable requirements contained in the Project Loan Mortgage;
(vi) the condominium association shall have (A) collaterally assigned its rights to Leases of rooftop and lobby spaces and agreed to deposit all Rents therefrom (except to the extent that the Condominium Documents increase any of FC Member’s interest therein) into one Tenant's obligations under this lease, or reduce any of Tenant's rights or remedies under this lease, and provided such Condominium Documents have been approved by Tenant, which approval Tenant covenants and agrees shall not be unreasonably withheld, conditioned or delayed. For the purpose of this lease, "Condominium Documents" shall mean the declaration, by-laws and rules and regulations, as same may be from time to time amended or modified, of the Collection Accounts Condominium. Tenant agrees to cooperate in good faith with Landlord in connection with such conversion, and (B) collaterally assigned the rights promtply to excess casualty proceeds (execute, acknowledge and deliver an amendment to the extent of FC Member’s interest therein) to Agent for the benefit of Agent this lease which contains said provisions and Lenderssuch other provisions that Landlord reasonably deems necessary in connection with such conversion, and such other documents, instruments and agreements that Landlord may reasonably request in each case pursuant to an agreement connection with such conversion, provided that such amendment and such other documents, instruments and agreements are in all respects reasonably satisfactory, in form and substance reasonably satisfactory substance, to Agent Tenant. Landlord shall reimburse Tenant for the reasonable attorneys' fees and Agent shall have received an opinion disbursements actually paid to Tenant's outside counsel for reviewing the Condominium Documents and for reviewing and negotiating such lease amendment and other documents, instruments and agreements, up to $10,000.00, in the aggregate, if the first drafts of counsel reasonably satisfactory to Agent as to the due authorization, execution and delivery and enforceability substantially all of such Condominium Documents or lease amendment and other documents, instruments and agreements are delivered (in good faith) to Tenant for its review within the one (1) year period commencing on the date of this lease, and such other customary matters with respect thereto as Agent may reasonably require;
(vii) the Project Loan Mortgage shall have been spread to cover the Severance Subleases to which FC Member is a party and the Ground Lease shall be released from the lien thereof;
(viii) the Lease Assignment (as defined $15,000.00, in the Ground Leaseaggregate, if the first of any of such documents are delivered after such one (1) shall have been duly executed year period, Tenant hereby agreeing that all attorney's fees and delivered;
(ix) Agent shall have received such other documents (including, without limitation, a title continuation), certificates, instruments, opinions or assurances as Agent may reasonably request; and
(x) Borrower shall have paid all reasonable out of pocket costs and expenses disbursements incurred by Agent Tenant in connection with the foregoing (including reasonable attorneys’ negotiation, drafting or execution of this lease, or any other contemporaneous agreements related to this lease, or Tenant's use of any portion of the Building, shall not be so reimbursed. Landlord shall pay such fees and disbursements)disbursements within thirty (30) days after it receives a demand therefor, accompanied by an invoice and detailed billing report.
(d) Borrower shall give Agent not less than ten (10) Business Days notice of any meeting of the condominium board and shall cause Agent or any representative thereof to be permitted to attend any such meeting. Upon reasonable notice by Agent, Borrower shall cause Agent or any representative thereof to be permitted to inspect the books and records of the Board of Managers and the FC Board of Managers (as each such term is defined in the Condominium Documents).
Appears in 1 contract
Sources: Lease Agreement (Sonesta International Hotels Corp)
Condominium. (a) To Upon L▇▇▇▇▇’s written request, Condominium Borrower shall provide Lender with copies of all statements issued by the Condominium Board for Assessments (iif any) not amend or supplement pursuant to the Condominium Documents without Agentpromptly after Condominium Borrower’s receipt thereof. Condominium Borrower shall pay prior approval, such approval not to be unreasonably withheld (Borrower and Agent hereby acknowledging and confirming that (x) subject delinquency all Assessments imposed pursuant to clause (y) of this parenthetical clause, Agent has approved the Condominium Declaration and the Condominium By-Laws substantially in the form attached as Exhibit E to the Operating Agreement, as Documents (if any) when the same is to be amended in accordance with the First Amendment) become due and (y) Agent’s approval, not to be unreasonably withheld, shall be required payable with respect to all portions of the Condominium Declaration and Unit. Condominium By-Laws Borrower will deliver to Lender, promptly upon L▇▇▇▇▇’s request, evidence reasonably satisfactory to Lender that such Assessments have been so paid or are not yet finalized and therefore not contained in said amended Exhibit E (e.g., Exhibits C, D and G of the Condominium Declaration), (ii) cause the Condominium Documents to comply with all applicable Legal Requirements, (iii) cause the Condominium Documents to be filed in the appropriate public offices and the condominium thereunder to be validly created on or prior to the achievement of Core and Shell Completion and (vi) from and after the date that the condominium is created, diligently enforce (and use diligent efforts to cause the condominium association to enforce) the second sentence of Section 1 of Article IX of the Condominium Declarationthen delinquent.
(b) Without Condominium Borrower shall, and shall vote to cause the prior consent of AgentCondominium Members appointed by Condominium Borrower to, neither Borrower nor observe and perform in all material respects each and every term to be observed or performed by them pursuant to the Condominium Documents to the extent the failure to observe and perform any Member shall abandon or change its plan for submission of the Mortgaged Property foregoing could reasonably be expected to have an Individual Material Adverse Effect, and comply in all material respects with any and all rules and regulations that may be adopted for the Condominium, as the same shall be in full force and effect from time to time to the condominium form extent the failure to comply with any of ownershipthe foregoing could reasonably be expected to have an Individual Material Adverse Effect.
(c) Agent Condominium Borrower shall, on and shall vote to cause the Condominium Members appointed by Condominium Borrower to, use commercially reasonable efforts to enforce the performance and observance of all of the covenants and agreements (other than those of a de minimis nature) required to be performed and/or observed under the Condominium Documents, to the extent Condominium Borrower or its Condominium Members has the legal right to do so.
(d) Condominium Borrower shall comply, and shall cause the Condominium Members appointed by Condominium Borrower to vote to comply, in all material respects with all Legal Requirements applicable to the Condominium, and will take all commercially reasonable actions as may be necessary from time to time to preserve and maintain the Condominium in accordance with applicable law, to the extent Condominium Borrower or its Condominium Members has the legal right to do so.
(e) Without the prior written consent of Lender, which shall not be unreasonably withheld, conditioned or delayed, Condominium Borrower shall not, and shall not cause the Condominium Members appointed by Condominium Borrower to, vote to (i) modify or amend any of the terms or provisions of the Condominium Documents in any material manner to the extent such modification or amendment could reasonably be expected to have an Individual Material Adverse Effect, (ii) subdivide the Condominium Unit, combine the Condominium Unit or otherwise reposition the Condominium Unit or Common Elements pursuant to the Condominium Documents or (iii) terminate the Condominium or the Condominium Documents (or permit any deemed approval provisions in the Condominium Documents with respect to any termination of the condominium regime to take effect), withdraw from a condominium regime, or partition, subdivide or expand the Condominium (and Condominium Borrower hereby collaterally assigns to Lender any right it may have to do any of the foregoing; it being agreed that Lender shall not exercise such voting right unless and until an Event of Default is then continuing).
(f) Borrower shall promptly deliver to Lender copies of any written notices of default received by Borrower under the Condominium Documents. Condominium Borrower shall deliver to Lender each annual budget of the Condominium (if any) promptly upon the finalization thereof and receipt thereof by Condominium Borrower.
(g) In addition to L▇▇▇▇▇’s other consent rights as specified in this Agreement, unless the following actions are required to effect a matter expressly required by Legal Requirements, Condominium Borrower shall not, and shall not permit any Condominium Members appointed by Condominium Borrower to, exercise any other material approval, consent or voting right to which it is entitled under the Condominium Documents, or any approval, consent or voting right with respect to any action or inaction that could reasonably be expected to result in an Individual Material Adverse Effect, in each case, without obtaining L▇▇▇▇▇’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.
(h) On the Closing Date with respect to the then-existing Condominium Members appointed by Condominium Borrower, and during the term of the Loan with respect to any new Condominium Members appointed by Condominium Borrower, Condominium Borrower shall obtain resignation letters from each such Condominium Member, to be held in escrow by L▇▇▇▇▇ and submitted (at L▇▇▇▇▇’s option) upon the occurrence and continuance of an Event of Default. Upon the occurrence and continuance of an Event of Default, L▇▇▇▇▇ has the right remove any Condominium Member appointed by Condominium Borrower, and Lender shall have the right to designate the replacement for such Condominium Member.
(i) Subject to the provisions of the Condominium Documents and applicable law, following the occurrence and during the continuance of an Event of Default, Lender shall have the rights and privileges which Condominium Borrower has under the Condominium Documents as though Lender were in fact the owner of Condominium Borrower’s interest in the Condominium Unit, which rights and privileges shall include, without limitation, all voting rights accruing to Condominium Borrower under the terms of the Condominium Documents. Upon the occurrence and continuance of an Event of Default, Lender may vote in place of Condominium Borrower and may exercise any and all of said rights. Condominium Borrower hereby irrevocably appoints L▇▇▇▇▇ as its attorney-in-fact, coupled with an interest, to vote as Condominium Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder. Written notice from Lender to the Condominium Board shall be deemed conclusive as to the existence of such Event of Default and as to L▇▇▇▇▇’s rights and privileges hereunder.
(j) Condominium Borrower shall promptly notify Lender of (i) except for normal annual increases under the Condominium Documents, any material adjustments made to the amount of Assessments levied by the Condominium Board due under the Condominium Documents, or (ii) the imposition of any additional material Assessments by the Condominium Board under the Condominium Documents, in each case to the extent not included in the Approved Annual Budget.
(k) Not more than once per year unless an Event of Default has occurred and is continuing, Condominium Borrower shall use commercially reasonable efforts to deliver to Lender, within fifteen (15) Business Days of request, estoppel certificates from each party under any Condominium Document in form and provided no Noticed substance reasonably acceptable to Lender.
(l) Borrower shall promptly notify Lender of (i) except for normal annual increases under the Condominium Documents, any adjustments made to the amount of Assessments levied by the Condominium Board due under the Condominium Documents, or (ii) the imposition of any additional Assessments by the Condominium Board under the Condominium Documents.
(m) Not more than once per year unless an Event of Default has occurred and is continuing, Borrower shall use commercially reasonable efforts to deliver to Lender, within fifteen (15) Business Days of request, estoppel certificates from each party under any Condominium Document in form and substance reasonably acceptable to Lender. Notwithstanding anything to the contrary set forth herein, it shall not be a Default or Event of Default shall then exist, subordinate under the lien of the Project Loan Mortgage Documents to the liens in favor of the condominium for common charges set forth in the Condominium Declaration pursuant to the Condominium Subordination Agreement, upon the satisfaction of the conditions enumerated below:
(i) the NYTC Units Redemption shall have occurred in accordance with Section 7.46(a) hereof;
(ii) the Title Insurance Policy insuring the Project Loan Mortgage shall have been endorsed to provide affirmative insurance in the form of Exhibit N attached hereto, to the effect that the Mortgaged Property constitutes extent there is a condominium validly created under the Condominium Act, Agent shall have received an assurance letter from the Title Companies in the form of Exhibit O hereto and Agent shall have received an endorsement to the existing title policy to the effect that the spreading of the Project Loan Mortgage and the Building Loan Mortgage referred to below shall not effect the validity breach or priority of such Mortgages;
(iii) Borrower shall have duly executed and delivered, or caused to be duly executed and delivered, to Agent (a) a conditional assignment of Borrower’s rights other default under the Condominium Documents in the form of Exhibit P hereto and (b) a conditional resignation of each of the Managers (as defined in the Condominium Declaration) of the condominium association in the form of Exhibit Q hereto;
(iv) Agent shall have received an opinion from counsel reasonably satisfactory to Agent which shall include opinions to the effect that (A) the Condominium Documents satisfy all applicable requirements of Governmental Authorities and have been duly executed and delivered and are enforceable against and if such breach or default is caused by the Borroweracts or omissions of Tenant, so long as Borrower is complying with its obligations to enforce such Tenant’s Lease pursuant to Section 5.1.20 of this Agreement and such breach or default by Tenant would not be reasonably likely to (Band does not in fact) all Legal Requirements relating to the formation of the condominium have been duly satisfied andresult in an Individual Material Adverse Effect, assuming the recording including without limitation, any termination of the Condominium Declaration and the subordination of the Project Loan Mortgage and Building Loan Mortgage to the Condominium Declaration pursuant to the Condominium Subordination Agreement, the condominium has been duly and validly created and is existing in full force and effect, (C) the assignment referred to in clause (iii) of this subsection has been duly authorized, executed and delivered by Borrower and is enforceable against Borrower and (D) the resignations referred to in clause (iii) of this subsection are enforceable against said parties in accordance with their respective terms;
(v) the condominium which shall be created by the or Condominium Documents, together with Borrower, shall have furnished to Agent, at no cost or expense to Agent, a blanket insurance policy complying with the applicable requirements contained in the Project Loan Mortgage;
(vi) the condominium association shall have (A) collaterally assigned its rights to Leases of rooftop and lobby spaces and agreed to deposit all Rents therefrom (to the extent of FC Member’s interest therein) into one of the Collection Accounts and (B) collaterally assigned the rights to excess casualty proceeds (to the extent of FC Member’s interest therein) to Agent for the benefit of Agent and Lenders, in each case pursuant to an agreement in form and substance reasonably satisfactory to Agent and Agent shall have received an opinion of counsel reasonably satisfactory to Agent as to the due authorization, execution and delivery and enforceability of such agreements and such other customary matters with respect thereto as Agent may reasonably require;
(vii) the Project Loan Mortgage shall have been spread to cover the Severance Subleases to which FC Member is a party and the Ground Lease shall be released from the lien thereof;
(viii) the Lease Assignment (as defined in the Ground Lease) shall have been duly executed and delivered;
(ix) Agent shall have received such other documents (including, without limitation, a title continuation), certificates, instruments, opinions or assurances as Agent may reasonably request; and
(x) Borrower shall have paid all reasonable out of pocket costs and expenses incurred by Agent in connection with the foregoing (including reasonable attorneys’ fees and disbursements).
(d) Borrower shall give Agent not less than ten (10) Business Days notice of any meeting of the condominium board and shall cause Agent or any representative thereof to be permitted to attend any such meeting. Upon reasonable notice by Agent, Borrower shall cause Agent or any representative thereof to be permitted to inspect the books and records of the Board of Managers and the FC Board of Managers (as each such term is defined in the Condominium Documents).
Appears in 1 contract
Sources: Loan Agreement (W. P. Carey Inc.)
Condominium. (a) To Upon ▇▇▇▇▇▇’s written request, Condominium Borrower shall provide Lender with copies of all statements issued by the Condominium Board for Assessments (iif any) not amend or supplement pursuant to the Condominium Documents without Agentpromptly after Condominium Borrower’s receipt thereof. Condominium Borrower shall pay prior approval, such approval not to be unreasonably withheld (Borrower and Agent hereby acknowledging and confirming that (x) subject delinquency all Assessments imposed pursuant to clause (y) of this parenthetical clause, Agent has approved the Condominium Declaration and the Condominium By-Laws substantially in the form attached as Exhibit E to the Operating Agreement, as Documents (if any) when the same is to be amended in accordance with the First Amendment) become due and (y) Agent’s approval, not to be unreasonably withheld, shall be required payable with respect to all portions of the Condominium Declaration and Unit. Condominium By-Laws Borrower will deliver to Lender, promptly upon ▇▇▇▇▇▇’s request, evidence reasonably satisfactory to Lender that such Assessments have been so paid or are not yet finalized and therefore not contained in said amended Exhibit E (e.g., Exhibits C, D and G of the Condominium Declaration), (ii) cause the Condominium Documents to comply with all applicable Legal Requirements, (iii) cause the Condominium Documents to be filed in the appropriate public offices and the condominium thereunder to be validly created on or prior to the achievement of Core and Shell Completion and (vi) from and after the date that the condominium is created, diligently enforce (and use diligent efforts to cause the condominium association to enforce) the second sentence of Section 1 of Article IX of the Condominium Declarationthen delinquent.
(b) Without Condominium Borrower shall, and shall vote to cause the prior consent of AgentCondominium Members appointed by Condominium Borrower to, neither Borrower nor observe and perform in all material respects each and every term to be observed or performed by them pursuant to the Condominium Documents to the extent the failure to observe and perform any Member shall abandon or change its plan for submission of the Mortgaged Property foregoing could reasonably be expected to have an Individual Material Adverse Effect, and comply in all material respects with any and all rules and regulations that may be adopted for the Condominium, as the same shall be in full force and effect from time to time to the condominium form extent the failure to comply with any of ownershipthe foregoing could reasonably be expected to have an Individual Material Adverse Effect.
(c) Agent Condominium Borrower shall, on and shall vote to cause the Condominium Members appointed by Condominium Borrower to, use commercially reasonable efforts to enforce the performance and observance of all of the covenants and agreements (other than those of a de minimis nature) required to be performed and/or observed under the Condominium Documents, to the extent Condominium Borrower or its Condominium Members has the legal right to do so.
(d) Condominium Borrower shall comply, and shall cause the Condominium Members appointed by Condominium Borrower to vote to comply, in all material respects with all Legal Requirements applicable to the Condominium, and will take all commercially reasonable actions as may be necessary from time to time to preserve and maintain the Condominium in accordance with applicable law, to the extent Condominium Borrower or its Condominium Members has the legal right to do so.
(e) Without the prior written consent of Lender, which shall not be unreasonably withheld, conditioned or delayed, Condominium Borrower shall not, and shall not cause the Condominium Members appointed by Condominium Borrower to, vote to (i) modify or amend any of the terms or provisions of the Condominium Documents in any material manner to the extent such modification or amendment could reasonably be expected to have an Individual Material Adverse Effect, (ii) subdivide the Condominium Unit, combine the Condominium Unit or otherwise reposition the Condominium Unit or Common Elements pursuant to the Condominium Documents or (iii) terminate the Condominium or the Condominium Documents (or permit any deemed approval provisions in the Condominium Documents with respect to any termination of the condominium regime to take effect), withdraw from a condominium regime, or partition, subdivide or expand the Condominium (and Condominium Borrower hereby collaterally assigns to Lender any right it may have to do any of the foregoing; it being agreed that Lender shall not exercise such voting right unless and until an Event of Default is then continuing).
(f) Borrower shall promptly deliver to Lender copies of any written notices of default received by Borrower under the Condominium Documents. Condominium Borrower shall deliver to Lender each annual budget of the Condominium (if any) promptly upon the finalization thereof and receipt thereof by Condominium Borrower.
(g) In addition to ▇▇▇▇▇▇’s other consent rights as specified in this Agreement, unless the following actions are required to effect a matter expressly required by Legal Requirements, Condominium Borrower shall not, and shall not permit any Condominium Members appointed by Condominium Borrower to, exercise any other material approval, consent or voting right to which it is entitled under the Condominium Documents, or any approval, consent or voting right with respect to any action or inaction that could reasonably be expected to result in an Individual Material Adverse Effect, in each case, without obtaining ▇▇▇▇▇▇’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.
(h) On the Closing Date with respect to the then-existing Condominium Members appointed by Condominium Borrower, and during the term of the Loan with respect to any new Condominium Members appointed by Condominium Borrower, Condominium Borrower shall obtain resignation letters from each such Condominium Member, to be held in escrow by ▇▇▇▇▇▇ and submitted (at ▇▇▇▇▇▇’s option) upon the occurrence and continuance of an Event of Default. Upon the occurrence and continuance of an Event of Default, ▇▇▇▇▇▇ has the right remove any Condominium Member appointed by Condominium Borrower, and Lender shall have the right to designate the replacement for such Condominium Member.
(i) Subject to the provisions of the Condominium Documents and applicable law, following the occurrence and during the continuance of an Event of Default, Lender shall have the rights and privileges which Condominium Borrower has under the Condominium Documents as though Lender were in fact the owner of Condominium Borrower’s interest in the Condominium Unit, which rights and privileges shall include, without limitation, all voting rights accruing to Condominium Borrower under the terms of the Condominium Documents. Upon the occurrence and continuance of an Event of Default, Lender may vote in place of Condominium Borrower and may exercise any and all of said rights. Condominium Borrower hereby irrevocably appoints ▇▇▇▇▇▇ as its attorney-in-fact, coupled with an interest, to vote as Condominium Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder. Written notice from Lender to the Condominium Board shall be deemed conclusive as to the existence of such Event of Default and as to ▇▇▇▇▇▇’s rights and privileges hereunder.
(j) Condominium Borrower shall promptly notify Lender of (i) except for normal annual increases under the Condominium Documents, any material adjustments made to the amount of Assessments levied by the Condominium Board due under the Condominium Documents, or (ii) the imposition of any additional material Assessments by the Condominium Board under the Condominium Documents, in each case to the extent not included in the Approved Annual Budget.
(k) Not more than once per year unless an Event of Default has occurred and is continuing, Condominium Borrower shall use commercially reasonable efforts to deliver to Lender, within fifteen (15) Business Days of request, estoppel certificates from each party under any Condominium Document in form and provided no Noticed substance reasonably acceptable to Lender.
(l) Borrower shall promptly notify Lender of (i) except for normal annual increases under the Condominium Documents, any adjustments made to the amount of Assessments levied by the Condominium Board due under the Condominium Documents, or (ii) the imposition of any additional Assessments by the Condominium Board under the Condominium Documents.
(m) Not more than once per year unless an Event of Default has occurred and is continuing, Borrower shall use commercially reasonable efforts to deliver to Lender, within fifteen (15) Business Days of request, estoppel certificates from each party under any Condominium Document in form and substance reasonably acceptable to Lender. Notwithstanding anything to the contrary set forth herein, it shall not be a Default or Event of Default shall then exist, subordinate under the lien of the Project Loan Mortgage Documents to the liens in favor of the condominium for common charges set forth in the Condominium Declaration pursuant to the Condominium Subordination Agreement, upon the satisfaction of the conditions enumerated below:
(i) the NYTC Units Redemption shall have occurred in accordance with Section 7.46(a) hereof;
(ii) the Title Insurance Policy insuring the Project Loan Mortgage shall have been endorsed to provide affirmative insurance in the form of Exhibit N attached hereto, to the effect that the Mortgaged Property constitutes extent there is a condominium validly created under the Condominium Act, Agent shall have received an assurance letter from the Title Companies in the form of Exhibit O hereto and Agent shall have received an endorsement to the existing title policy to the effect that the spreading of the Project Loan Mortgage and the Building Loan Mortgage referred to below shall not effect the validity breach or priority of such Mortgages;
(iii) Borrower shall have duly executed and delivered, or caused to be duly executed and delivered, to Agent (a) a conditional assignment of Borrower’s rights other default under the Condominium Documents in the form of Exhibit P hereto and (b) a conditional resignation of each of the Managers (as defined in the Condominium Declaration) of the condominium association in the form of Exhibit Q hereto;
(iv) Agent shall have received an opinion from counsel reasonably satisfactory to Agent which shall include opinions to the effect that (A) the Condominium Documents satisfy all applicable requirements of Governmental Authorities and have been duly executed and delivered and are enforceable against and if such breach or default is caused by the Borroweracts or omissions of Tenant, so long as Borrower is complying with its obligations to enforce such Tenant’s Lease pursuant to Section 5.1.20 of this Agreement and such breach or default by Tenant would not be reasonably likely to (Band does not in fact) all Legal Requirements relating to the formation of the condominium have been duly satisfied andresult in an Individual Material Adverse Effect, assuming the recording including without limitation, any termination of the Condominium Declaration and the subordination of the Project Loan Mortgage and Building Loan Mortgage to the Condominium Declaration pursuant to the Condominium Subordination Agreement, the condominium has been duly and validly created and is existing in full force and effect, (C) the assignment referred to in clause (iii) of this subsection has been duly authorized, executed and delivered by Borrower and is enforceable against Borrower and (D) the resignations referred to in clause (iii) of this subsection are enforceable against said parties in accordance with their respective terms;
(v) the condominium which shall be created by the or Condominium Documents, together with Borrower, shall have furnished to Agent, at no cost or expense to Agent, a blanket insurance policy complying with the applicable requirements contained in the Project Loan Mortgage;
(vi) the condominium association shall have (A) collaterally assigned its rights to Leases of rooftop and lobby spaces and agreed to deposit all Rents therefrom (to the extent of FC Member’s interest therein) into one of the Collection Accounts and (B) collaterally assigned the rights to excess casualty proceeds (to the extent of FC Member’s interest therein) to Agent for the benefit of Agent and Lenders, in each case pursuant to an agreement in form and substance reasonably satisfactory to Agent and Agent shall have received an opinion of counsel reasonably satisfactory to Agent as to the due authorization, execution and delivery and enforceability of such agreements and such other customary matters with respect thereto as Agent may reasonably require;
(vii) the Project Loan Mortgage shall have been spread to cover the Severance Subleases to which FC Member is a party and the Ground Lease shall be released from the lien thereof;
(viii) the Lease Assignment (as defined in the Ground Lease) shall have been duly executed and delivered;
(ix) Agent shall have received such other documents (including, without limitation, a title continuation), certificates, instruments, opinions or assurances as Agent may reasonably request; and
(x) Borrower shall have paid all reasonable out of pocket costs and expenses incurred by Agent in connection with the foregoing (including reasonable attorneys’ fees and disbursements).
(d) Borrower shall give Agent not less than ten (10) Business Days notice of any meeting of the condominium board and shall cause Agent or any representative thereof to be permitted to attend any such meeting. Upon reasonable notice by Agent, Borrower shall cause Agent or any representative thereof to be permitted to inspect the books and records of the Board of Managers and the FC Board of Managers (as each such term is defined in the Condominium Documents).
Appears in 1 contract
Condominium. Borrower covenants and agrees as follows:
(a) To (i) not amend or supplement Borrower shall cause Property Owner to pay all common charges and other assessments as required by the Condominium Documents without Agent’s prior approval, such approval not to be unreasonably withheld (Borrower and Agent hereby acknowledging and confirming that (x) subject to clause (y) of this parenthetical clause, Agent has approved the Condominium Declaration and the Condominium By-Laws substantially in the form attached as Exhibit E to the Operating Agreement, as the same is to be amended in accordance with the First Amendment) and (y) Agent’s approval, not to be unreasonably withheld, shall be required with respect to all portions of the Condominium Declaration applicable Property and Condominium By-Laws not yet finalized and therefore not contained in said amended Exhibit E (e.g.shall promptly, Exhibits Cfollowing demand, D and G of the Condominium Declaration), (ii) cause the Condominium Documents exhibit to comply with Lender receipts for all applicable Legal Requirements, (iii) cause the Condominium Documents to be filed in the appropriate public offices and the condominium thereunder to be validly created on or prior to the achievement of Core and Shell Completion and (vi) from and after the date that the condominium is created, diligently enforce (and use diligent efforts to cause the condominium association to enforce) the second sentence of Section 1 of Article IX of the Condominium Declaration.such payments;
(b) Without Borrower shall not, unless directed otherwise in writing by Lender, without first obtaining Lender’s prior written consent, permit Property Owner to (1) vote for, consent to or permit to occur any modification of, amendment to, or relaxation in the prior consent of Agentenforcement of, neither Borrower nor any Member shall abandon or change its plan for submission material provision of the Mortgaged Property Condominium Documents; provided, however, Lender’s approval shall not be required for amendments to the condominium form Condominium Documents containing disclosures or other provisions required to be made by Legal Requirements; (2) in the event of ownership.damage to or destruction of the applicable Property, vote in opposition to a motion to repair, restore or rebuild, unless the Indebtedness will be repaid in full pursuant to Section 5.16; (3) partition or subdivide any Condominium Unit, or combine any Condominium Unit with another Condominium Unit; (4) consent to the termination of the Condominium; or (5) vote in favor of the imposition of special assessments for capital improvements pursuant to the Condominium Documents; and
(c) Agent shallBorrower shall cause Property Owner to fully and faithfully observe, on Borrower’s requestkeep and perform, in all material respects, each and provided no Noticed Default or Event of Default shall then existevery material requirement, subordinate the lien of the Project Loan Mortgage to the liens in favor of the condominium for common charges set forth in the Condominium Declaration pursuant to the Condominium Subordination Agreementcondition, upon the satisfaction of the conditions enumerated below:
(i) the NYTC Units Redemption shall have occurred in accordance with Section 7.46(a) hereof;
(ii) the Title Insurance Policy insuring the Project Loan Mortgage shall have been endorsed to provide affirmative insurance in the form of Exhibit N attached heretocovenant, to the effect that the Mortgaged Property constitutes a condominium validly created agreement and provisions under the Condominium Act, Agent shall have received an assurance letter from the Title Companies in the form of Exhibit O hereto Act and Agent shall have received an endorsement to the existing title policy to the effect that the spreading of the Project Loan Mortgage and the Building Loan Mortgage referred to below shall not effect the validity or priority of such Mortgages;
(iii) Borrower shall have duly executed and delivered, or caused to be duly executed and delivered, to Agent (a) a conditional assignment of Borrower’s rights under the Condominium Documents in on the form part of Exhibit P hereto Property Owner to be observed, kept and (b) performed. Borrower shall promptly deliver to Lender a conditional resignation copy of each any notice of default received by Property Owner or Borrower with respect to any obligation of Property Owner under the Managers (as defined in the Condominium Declaration) provisions of the condominium association in the form of Exhibit Q hereto;
(iv) Agent shall have received an opinion from counsel reasonably satisfactory to Agent which shall include opinions to the effect that (A) the Condominium Documents satisfy all applicable requirements of Governmental Authorities and have been duly executed and delivered and are enforceable against and by the Borrower, (B) all Legal Requirements relating to the formation of the condominium have been duly satisfied and, assuming the recording of or the Condominium Declaration and the subordination of the Project Loan Mortgage and Building Loan Mortgage to the Condominium Declaration pursuant to the Condominium Subordination Agreement, the condominium has been duly and validly created and is existing in full force and effect, (C) the assignment referred to in clause (iii) of this subsection has been duly authorized, executed and delivered by Borrower and is enforceable against Borrower and (D) the resignations referred to in clause (iii) of this subsection are enforceable against said parties in accordance with their respective terms;
(v) the condominium which shall be created by the Condominium Documents, together with Borrower, shall have furnished to Agent, at no cost or expense to Agent, a blanket insurance policy complying with the applicable requirements contained in the Project Loan Mortgage;
(vi) the condominium association shall have (A) collaterally assigned its rights to Leases of rooftop and lobby spaces and agreed to deposit all Rents therefrom (to the extent of FC Member’s interest therein) into one of the Collection Accounts and (B) collaterally assigned the rights to excess casualty proceeds (to the extent of FC Member’s interest therein) to Agent for the benefit of Agent and Lenders, in each case pursuant to an agreement in form and substance reasonably satisfactory to Agent and Agent shall have received an opinion of counsel reasonably satisfactory to Agent as to the due authorization, execution and delivery and enforceability of such agreements and such other customary matters with respect thereto as Agent may reasonably require;
(vii) the Project Loan Mortgage shall have been spread to cover the Severance Subleases to which FC Member is a party and the Ground Lease shall be released from the lien thereof;
(viii) the Lease Assignment (as defined in the Ground Lease) shall have been duly executed and delivered;
(ix) Agent shall have received such other documents (including, without limitation, a title continuation), certificates, instruments, opinions or assurances as Agent may reasonably request; and
(x) Borrower shall have paid all reasonable out of pocket costs and expenses incurred by Agent in connection with the foregoing (including reasonable attorneys’ fees and disbursements)Act.
(d) Borrower shall give Agent not less than ten (10) Business Days notice of any meeting of the condominium board and shall cause Agent or any representative thereof to be permitted to attend any such meeting. Upon reasonable notice by Agent, Borrower shall cause Agent or any representative thereof to be permitted to inspect the books and records of the Board of Managers and the FC Board of Managers (as each such term is defined in the Condominium Documents).
Appears in 1 contract
Condominium. (a) To (i) not amend or supplement the The Condominium Documents without Agent’s prior approval, such approval not to be unreasonably withheld (Units owned by Borrower and Agent hereby acknowledging and confirming that each “Residential Unit” (x) subject to clause (y) of this parenthetical clause, Agent has approved the Condominium Declaration and the Condominium By-Laws substantially as defined in the form attached as Exhibit E to Declaration) are the Operating Agreement, as the same is to be amended in accordance with the First Amendment) and (y) Agent’s approval, not to be unreasonably withheld, shall be required with respect to all portions of the only Condominium Declaration and Condominium By-Laws not yet finalized and therefore not contained in said amended Exhibit E (e.g., Exhibits C, D and G of the Condominium Declaration), (ii) cause the Condominium Documents to comply with all applicable Legal Requirements, (iii) cause the Condominium Documents to be filed Units in the appropriate public offices and the condominium thereunder to be validly created on or prior to the achievement of Core and Shell Completion and (vi) from and after the date that the condominium is created, diligently enforce (and use diligent efforts to cause the condominium association to enforce) the second sentence of Section 1 of Article IX of the Condominium DeclarationCondominium.
(b) Without Each Condominium Document is in full force and effect and constitutes the prior consent binding obligation of AgentBorrower and, neither Borrower nor any Member shall abandon or change its plan for submission of the Mortgaged Property to the condominium form of ownershipBorrower’s knowledge, each other party thereto.
(c) Agent shall, on Borrower’s request, and provided no Noticed Default or Event of Default shall then exist, subordinate the lien of the Project Loan Mortgage to the liens in favor of the condominium for common charges Except as expressly set forth in the Exception Report, Borrower has not consented to any amendment or modification (oral or written) of any of the Condominium Declaration pursuant Documents, nor, to Borrower’s knowledge, does any such amendment or modification (oral or written) of any of the Condominium Documents exist.
(d) No events exist that, now or after the passage of time, or both, would constitute a default by Borrower under any of the Condominium Documents (unless such default would not cause or reasonably be expected to result in a Material Adverse Effect). In addition, to Borrower’s knowledge, no events exist that, now or after the passage of time, or both, would constitute a default by any Person other than Borrower under any of the Condominium Documents (unless such default would not cause or reasonably be expected to result in a Material Adverse Effect).
(e) Except as set forth in the Exception Report, there are no sums that are currently due and payable by Borrower under any of the Condominium Documents to either the Condominium Association or the owners of the Condominium Units other than the Condominium Unit owned by Borrower, which sums remain unpaid. In addition, except as set forth in the Exception Report, to Borrower’s knowledge, there are no sums due and payable by the Condominium Association or the owners of the Condominium Units other than the Condominium Unit owned by Borrower under any of the Condominium Documents to either Borrower or to the Condominium Subordination AgreementAssociation, upon the satisfaction of the conditions enumerated below:which sums remain unpaid.
(if) the NYTC Units Redemption shall have occurred in accordance with Section 7.46(a) hereof;
(ii) the Title Insurance Policy insuring the Project Loan Mortgage shall have been endorsed to provide affirmative insurance in the form of Exhibit N attached heretoTo Borrower’s knowledge, to the effect that the Mortgaged Property constitutes a condominium validly created there are no currently outstanding special assessments under the Condominium ActDocuments, Agent shall have received an assurance letter from the Title Companies in the form of Exhibit O hereto and Agent shall have received an endorsement and, to Borrower’s knowledge, none are presently contemplated.
(g) To Borrower’s knowledge, there are no anticipated capital improvements or repairs presently being undertaken to the existing title policy to the effect that the spreading common elements or any other property of the Project Loan Mortgage and Condominium and, to Borrower’s knowledge, the Building Loan Mortgage referred to below shall Condominium Association does not effect the validity presently contemplate undertaking any such capital improvements or priority of such Mortgages;repairs.
(iiih) Borrower shall have duly executed and delivered, or caused to be duly executed and delivered, to Agent (a) a conditional assignment of Borrower’s rights under the Condominium Documents in the form of Exhibit P hereto and (b) a conditional resignation of each As of the Managers date hereof, the members of the “Executive Board” (as defined in the Condominium Declaration) appointed by Borrower are Stephane de Baets, ▇▇▇▇ ▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇.
(i) To Borrower’s knowledge, the Condominium Association has not incurred any debts and has not encumbered the common elements or any other property of the condominium association in the form of Exhibit Q hereto;Condominium.
(ivj) Agent shall have received an opinion from counsel reasonably satisfactory to Agent which shall include opinions Except as set forth on the Exception Report, the Condominium Association has not entered into any management or maintenance agreements with respect to the effect that (A) the Condominium Documents satisfy all applicable requirements of Governmental Authorities and have been duly executed and delivered and are enforceable against and by the Borrower, (B) all Legal Requirements relating to the formation common elements or any other property of the condominium have been duly satisfied andCondominium.
(k) Borrower has not received written notice of or initiated, assuming and to Borrower’s knowledge there are no, disputes between Borrower and the recording owners of the Condominium Declaration Units other than the Condominium Unit owned by Borrower and/or the Condominium Association, and, to Borrower’s knowledge, no dispute between the owners of the Condominium Units other than the Condominium Unit owned by Borrower and the subordination Condominium Association have been submitted to the board of directors of the Project Loan Mortgage and Building Loan Mortgage Condominium Association or any other Person for resolution in accordance with the provisions of the Condominium Documents.
(l) To Borrower’s knowledge, there are no actions, whether voluntary or otherwise, pending against the owners of the Condominium Units other than the Condominium Unit owned by Borrower or the Condominium Association pursuant to the bankruptcy or insolvency laws of the United States or any state thereof, and none has been threatened.
(m) Neither the Condominium Declaration Association nor the owners of the Condominium Units other than the Condominium Unit owned by Borrower have any purchase, lease or other options or rights of first refusal with respect to the Property pursuant to the Condominium Subordination Agreement, the condominium has been duly and validly created and is existing in full force and effect, (C) the assignment referred to in clause (iii) of this subsection has been duly authorized, executed and delivered by Borrower and is enforceable against Borrower and (D) the resignations referred to in clause (iii) of this subsection are enforceable against said parties in accordance with their respective terms;
(v) the condominium which shall be created by the Condominium Documents, together with Borrower, shall have furnished to Agent, at no cost Documents or expense to Agent, a blanket insurance policy complying with the applicable requirements contained in the Project Loan Mortgage;
(vi) the condominium association shall have (A) collaterally assigned its rights to Leases of rooftop and lobby spaces and agreed to deposit all Rents therefrom (to the extent of FC Member’s interest therein) into one of the Collection Accounts and (B) collaterally assigned the rights to excess casualty proceeds (to the extent of FC Member’s interest therein) to Agent for the benefit of Agent and Lenders, in each case pursuant to an agreement in form and substance reasonably satisfactory to Agent and Agent shall have received an opinion of counsel reasonably satisfactory to Agent as to the due authorization, execution and delivery and enforceability of such agreements and such other customary matters with respect thereto as Agent may reasonably require;
(vii) the Project Loan Mortgage shall have been spread to cover the Severance Subleases to which FC Member is a party and the Ground Lease shall be released from the lien thereof;
(viii) the Lease Assignment (as defined in the Ground Lease) shall have been duly executed and delivered;
(ix) Agent shall have received such other documents (including, without limitation, a title continuation), certificates, instruments, opinions or assurances as Agent may reasonably request; and
(x) Borrower shall have paid all reasonable out of pocket costs and expenses incurred by Agent in connection with the foregoing (including reasonable attorneys’ fees and disbursements)otherwise.
(d) Borrower shall give Agent not less than ten (10) Business Days notice of any meeting of the condominium board and shall cause Agent or any representative thereof to be permitted to attend any such meeting. Upon reasonable notice by Agent, Borrower shall cause Agent or any representative thereof to be permitted to inspect the books and records of the Board of Managers and the FC Board of Managers (as each such term is defined in the Condominium Documents).
Appears in 1 contract
Sources: Loan Agreement (Aspen REIT, Inc.)
Condominium. (a) To (i) not amend or supplement As it relates to the Condominium Documents without Agent’s prior approvalcreated pursuant to the Declaration (Master), such approval not to be unreasonably withheld (Borrower and Agent hereby acknowledging and confirming that (x) subject to clause (y) of this parenthetical clause, Agent has approved the Condominium Declaration and the Condominium By-Laws substantially a 55.2278% aggregate percentage interest in the form attached as Exhibit E to the Operating Agreement, as the same is to be amended in accordance with the First Amendment) and (y) Agent’s approval, not to be unreasonably withheld, shall be required with respect to all portions Common Elements of the Condominium Declaration and the remaining 44.7722% aggregate percentage interest in the Common Elements is owned entirely by the Sub-Units. The Condominium By-Laws not yet finalized Units owned by Borrower and therefore not contained the Residential Master Unit are the only Condominium Units in said amended Exhibit E (e.g., Exhibits C, D and G of the Condominium Declaration), (ii) cause the Condominium Documents to comply with all applicable Legal Requirements, (iii) cause the Condominium Documents to be filed in the appropriate public offices and the condominium thereunder to be validly created on or prior pursuant to the achievement of Core and Shell Completion and Declaration (vi) from and after the date that the condominium is created, diligently enforce (and use diligent efforts to cause the condominium association to enforce) the second sentence of Section 1 of Article IX of the Condominium DeclarationMaster).
(b) Without As it relates to the prior consent of AgentCondominium created pursuant to the Declaration (Hotel-Residential), neither Borrower nor any Member shall abandon or change its plan for submission has a 61.2195% aggregate percentage interest in the Common Elements of the Mortgaged Property Condominium and the remaining 38.7805% aggregate percentage interest in the Common Elements is owned entirely by the owners of the Sub-Units. The Condominium Unit owned by Borrower and the Sub-Units are the only Condominium Units in the Condominium created pursuant to the condominium form of ownershipDeclaration (Hotel-Residential).
(c) Agent shall, on Borrower’s request, and provided no Noticed Default or Event of Default shall then exist, subordinate the lien of the Project Loan Mortgage to the liens in favor of the condominium for common charges set forth in the Each Condominium Declaration pursuant to the Condominium Subordination Agreement, upon the satisfaction of the conditions enumerated below:
(i) the NYTC Units Redemption shall have occurred in accordance with Section 7.46(a) hereof;
(ii) the Title Insurance Policy insuring the Project Loan Mortgage shall have been endorsed to provide affirmative insurance in the form of Exhibit N attached hereto, to the effect that the Mortgaged Property constitutes a condominium validly created under the Condominium Act, Agent shall have received an assurance letter from the Title Companies in the form of Exhibit O hereto and Agent shall have received an endorsement to the existing title policy to the effect that the spreading of the Project Loan Mortgage and the Building Loan Mortgage referred to below shall not effect the validity or priority of such Mortgages;
(iii) Borrower shall have duly executed and delivered, or caused to be duly executed and delivered, to Agent (a) a conditional assignment of Borrower’s rights under the Condominium Documents in the form of Exhibit P hereto and (b) a conditional resignation of each of the Managers (as defined in the Condominium Declaration) of the condominium association in the form of Exhibit Q hereto;
(iv) Agent shall have received an opinion from counsel reasonably satisfactory to Agent which shall include opinions to the effect that (A) the Condominium Documents satisfy all applicable requirements of Governmental Authorities and have been duly executed and delivered and are enforceable against and by the Borrower, (B) all Legal Requirements relating to the formation of the condominium have been duly satisfied and, assuming the recording of the Condominium Declaration and the subordination of the Project Loan Mortgage and Building Loan Mortgage to the Condominium Declaration pursuant to the Condominium Subordination Agreement, the condominium has been duly and validly created and Document is existing in full force and effecteffect in all material respects and constitutes the binding obligation of Borrower and, (C) the assignment referred to in clause (iii) of this subsection has been duly authorizedBorrower's knowledge, executed and delivered by Borrower and is enforceable against Borrower and (D) the resignations referred to in clause (iii) of this subsection are enforceable against said parties in accordance with their respective terms;
(v) the condominium which shall be created by the Condominium Documents, together with Borrower, shall have furnished to Agent, at no cost or expense to Agent, a blanket insurance policy complying with the applicable requirements contained in the Project Loan Mortgage;
(vi) the condominium association shall have (A) collaterally assigned its rights to Leases of rooftop and lobby spaces and agreed to deposit all Rents therefrom (to the extent of FC Member’s interest therein) into one of the Collection Accounts and (B) collaterally assigned the rights to excess casualty proceeds (to the extent of FC Member’s interest therein) to Agent for the benefit of Agent and Lenders, in each case pursuant to an agreement in form and substance reasonably satisfactory to Agent and Agent shall have received an opinion of counsel reasonably satisfactory to Agent as to the due authorization, execution and delivery and enforceability of such agreements and such other customary matters with respect thereto as Agent may reasonably require;
(vii) the Project Loan Mortgage shall have been spread to cover the Severance Subleases to which FC Member is a party and the Ground Lease shall be released from the lien thereof;
(viii) the Lease Assignment (as defined in the Ground Lease) shall have been duly executed and delivered;
(ix) Agent shall have received such other documents (including, without limitation, a title continuation), certificates, instruments, opinions or assurances as Agent may reasonably request; and
(x) Borrower shall have paid all reasonable out of pocket costs and expenses incurred by Agent in connection with the foregoing (including reasonable attorneys’ fees and disbursements)thereto.
(d) Except as expressly set forth in the Exception Report, Borrower shall give Agent has not less than ten consented to any amendment or modification (10oral or written) Business Days notice of any meeting of the condominium board and shall cause Agent or any representative thereof to be permitted to attend any such meeting. Upon reasonable notice by Agent, Borrower shall cause Agent or any representative thereof to be permitted to inspect the books and records of the Board of Managers and the FC Board of Managers (as each such term is defined in the Condominium Documents, nor, to Borrower's knowledge, does any such amendment or modification (oral or written) of any of the Condominium Documents exist.
(e) To Borrower's knowledge, no events exist that, now or after the passage of time, or both, would constitute a default by Borrower under any of the Condominium Documents (unless such default would not cause or reasonably be expected to result in a Material Adverse Effect). In addition, to Borrower's knowledge, no events exist that, now or after the passage of time, or both, would constitute a default by any Person other than Borrower under any of the Condominium Documents (unless such default would not cause or reasonably be expected to result in a Material Adverse Effect).
(f) Except as set forth in the Exception Report, there are no sums that are due and payable by Borrower under any of the Condominium Documents to either the Condominium Associations or the owners of the Condominium Units other than the Condominium Units owned by Borrower, which sums remain unpaid. In addition, except as set forth in the Exception Report, to Borrower's knowledge, there are no sums due and payable by the Condominium Associations or the owners of the Condominium Units other than the Condominium Units owned by Borrower under any of the Condominium Documents to either Borrower or to the Condominium Associations, which sums remain unpaid.
(g) As of the date hereof, the assessments assessed against the Property under the Condominium Documents equal $84,545.87 for the Condominium created pursuant to the Declaration (Master) and $5,698.51 for the Hotel Master Unit pursuant to the Declaration (Hotel-Residential), payable monthly in equal amounts.
(h) To Borrower's knowledge, there are no currently outstanding special assessments under the Condominium Documents, and, to Borrower's knowledge, none are presently contemplated.
(i) To Borrower's knowledge, there are no anticipated capital improvements or repairs presently being undertaken to the Common Elements or any other property of the Condominiums and, to Borrower's knowledge, the Condominium Associations do not presently contemplate undertaking any such capital improvements or repairs except as required by the PIP referenced in the Exception Report.
(j) As of the Closing Date, the sole members of the board of directors of Block 21 Master Condominium Community, Inc. (i.e., Association created pursuant to the Declaration (Master)) are ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III and ▇▇▇▇▇▇ ▇▇▇▇, all of whom were appointed by Borrower.
(k) As of the Closing Date, the sole members of the board of directors of Block 21 Condominium Community, Inc. (i.e., Association created pursuant to the Declaration (Hotel-Residential)) are (i) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III and ▇▇▇▇▇▇ ▇▇▇▇, all of whom were appointed by Borrower and (ii) ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ Land, who were appointed by the owners of the Sub-Units.
(l) To Borrower's knowledge, the Condominium Associations have not incurred any debts and has not encumbered the Common Elements or any other property of the Condominiums.
(m) Except as set forth on the Exception Report, the Condominium Associations have not entered into any management or maintenance agreements with respect to the Common Elements or any other property of the Condominium.
(n) No disputes between Borrower and the owners of the Condominium Units other than the Condominium Units owned by Borrower and/or the Condominium Associations that could result in a Material Adverse Effect, and, to Borrower's knowledge, no dispute between the owners of the Condominium Units other than the Condominium Units owned by Borrower and the Condominium Associations, which could result in a Material Adverse Effect, have been submitted to the board of directors of the Condominium Associations or any other Person for resolution in accordance with the provisions of the Condominium Documents.
(o) To Borrower's knowledge, there are no actions, whether voluntary or otherwise, pending against the owners of the Condominium Units other than the Condominium Units owned by Borrower or the Condominium Associations pursuant to the bankruptcy or insolvency laws of the United States or any state thereof, and none has been threatened.
(p) Neither the Condominium Associations nor the owners of the Condominium Units other than the Condominium Units owned by Borrower have any purchase, lease or other options or rights of first refusal with respect to the Property pursuant to the Condominium Documents or otherwise.
Appears in 1 contract