Contracts of Sale. (a) Administrative Agent hereby approves the Residential Unit Contracts of Sale executed prior to the date hereof as described on Exhibit I attached hereto. (b) Borrower shall not cause or permit Mortgage Borrower to enter into a Residential Unit Contract of Sale unless said Residential Unit Contract of Sale is in compliance with the terms and conditions of this Agreement and the Mortgage Loan Agreement. Each Residential Unit Contract of Sale shall be on the Approved Form of Contract of Sale (subject only to customary non-material negotiated revisions to said form that have no material adverse effect on Borrower, Mortgage Borrower, Administrative Agent, Lender or the Project), and all of the following conditions shall have been satisfied: (i) The purchase price under such Residential Unit Contract of Sale for a Subdivided Residential Unit shall be greater than or equal to the Residential Unit Minimum Sales Price for such Subdivided Residential Unit; (ii) such Residential Unit Contract of Sale shall not provide for Mortgage Borrower, as seller, to provide any seller financing or to take back any purchase money mortgages as part of the sales price; (iii) such Residential Unit Contract of Sale shall not be subject to cancellation, except as provided in the Offering Plan, by the Condominium Laws (including those requiring disclosures to prospective and actual purchasers) and/or the Approved Form of Contract of Sale; (iv) such Residential Unit Contract of Sale shall have no contingencies thereunder, unless otherwise approved by Administrative Agent in writing, except (w) Completion of the Construction Work, (x) those set forth in the Approved Form of Contract of Sale or Offering Plan, (y) a contingency for Mortgage Borrower’s obligation to consummate the closing in accordance with the provisions of the Residential Unit Contract of Sale on or before the date set forth therein for such closing, which date shall not be prior to the date set forth in the Anticipated TCO Date Schedule for said Subdivided Residential Unit, and (z) a financing contingency on then current market terms and conditions, provided that any Residential Unit Contract of Sale that contains a financing contingency shall not be included in the calculation of Residential Net Sale Proceeds in connection Mortgage Borrower’s compliance with the Sales Pace Covenant until such time as the financing contingency has been satisfied, expired by its terms or been waived in writing by the purchaser thereunder, or the closing under such Residential Unit Contract of Sale has occurred; (v) such Residential Unit Contract of Sale requires the applicable Residential Unit Purchaser upon execution thereof, to make a cash deposit of not less than ten percent (10%) of the gross sales price of the Subdivided Residential Unit, unless Borrower obtains (or causes Mortgage Borrower to obtain) Administrative Agent’s prior written consent to a deposit in an amount less than ten percent (10%) of the gross sales price of the applicable Subdivided Residential Unit, which consent shall not be unreasonably withheld, conditioned or delayed; (vi) such Residential Unit Contract of Sale provides for the entire purchase price and other payments thereunder payable to Mortgage Borrower, as seller under the Residential Unit Contract of Sale, to be paid by wire transfer, bank check or certified funds at the closing of such Subdivided Residential Unit (either by means of an all-cash sale, or from institutional financing obtained by the purchaser); (vii) intentionally omitted; (viii) the Offering Plan and the other Condominium Documents shall have been submitted to and approved by Administrative Agent and the Offering Plan has been accepted for filing by the Attorney General; (ix) Borrower shall not cause or permit Mortgage Borrower to enter into a Bulk Sale without Administrative Agent’s prior consent, which consent may be granted or withheld in Administrative Agent’s sole and absolute discretion; and (x) Notwithstanding anything herein to the contrary, (i) Borrower shall not cause or permit Mortgage Borrower to sell any Subdivided Residential Unit to an Affiliate or relative of Borrower, Mortgage Borrower, Indemnitor or any Principal without Administrative Agent’s approval, which approval shall be in Administrative Agent’s sole and absolute discretion, and (ii) any closing expenses, fees, charges or otherwise incurred by Borrower or Mortgage Borrower in connection with the sale of a Subdivided Residential Unit shall only be paid to third parties unaffiliated with Borrower, Mortgage Borrower, Indemnitor or any Principal, unless payment of such expense is approved by Administrative Agent, which approval shall be in Administrative Agent’s sole and absolute discretion. (c) Borrower shall not cause or permit Mortgage Borrower to enter into a contract for the sale of the Retail Unit (a “Retail Unit Contract of Sale”) unless it has been approved in writing by Administrative Agent (which approval shall not be unreasonably withheld, conditioned or delayed) and all of the following conditions shall have been satisfied:
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Trinity Place Holdings Inc.)
Contracts of Sale. (a) Administrative Agent hereby approves Borrower shall not enter into any Contracts of Sale, other than Qualifying Contracts of Sale. Unless Borrower has theretofore obtained the Residential Unit Lenders’ prior written consent thereto, Borrower may not enter into Contracts of Sale executed prior with Guarantor, or Affiliates of Borrower or Guarantor. Notwithstanding the previous sentence, the Lenders hereby consent to the sale of Units pursuant to the ER Purchase Agreement and the Lenders’ consent shall not be required with respect to immaterial amendments to the form Contract of Sale previously approved by the Lenders for sale of each individual Unit to be sold under the ER Purchase Agreement, to conform to the ER Purchase Agreement, provided that no amendment shall be made to the sale price set forth in the ER Purchase Agreement in effect on the date hereof hereof. Lenders shall not unreasonably withhold such consent, provided that the applicable Contract of Sale (i) satisfies the requirements of the definition of “Qualifying Contract of Sale” contained herein and (ii) is otherwise on an arm’s length, commercially reasonable basis. All Contracts of Sale entered into by Borrower after the Original Effective Date shall be covered by the Assignment of Purchase Contracts and, in each case, if required by the Agent, by a separate assignment in form and substance similar to the Assignment of Purchase Contracts. Notwithstanding anything to the contrary in this Agreement, the Lenders hereby consent to the sale of Units pursuant to the ER Purchase Agreement and any individual purchase agreements entered into pursuant to the ER Purchase Agreement so long as described on Exhibit I attached heretothe purchaser under each such individual agreement is Exclusive Resorts or any of its Affiliates.
(b) Borrower All Contract Deposits shall not cause or permit Mortgage Borrower be deposited and held in the Condominium Deposit Account until such time as (i) a purchaser becomes entitled to enter into a Residential Unit Contract of Sale unless said Residential Unit Contract of Sale is the refund thereof in compliance accordance with the terms and conditions of this Agreement and the Mortgage Loan Agreement. Each Residential Unit Contract of Sale shall be on the Approved Form of Contract of Sale (subject only to customary non-material negotiated revisions to said form that have no material adverse effect on Borrower, Mortgage Borrower, Administrative Agent, Lender or the Project), and all of the following conditions shall have been satisfied:
(i) The purchase price under such Residential Unit Contract of Sale for a Subdivided Residential Unit shall be greater than or equal to the Residential Unit Minimum Sales Price for such Subdivided Residential Unit;
(ii) such Residential Unit Contract of Sale shall not provide for Mortgage Borrower, as seller, to provide any seller financing or to take back any purchase money mortgages as part of the sales price;
(iii) such Residential Unit Contract of Sale shall not be subject to cancellation, except as provided in the Offering Plan, by the Condominium Laws (including those requiring disclosures to prospective and actual purchasers) and/or the Approved Form of Contract of Sale;
(iv) such Residential Unit Contract of Sale shall have no contingencies thereunder, unless otherwise approved by Administrative Agent in writing, except (w) Completion of the Construction Work, (x) those set forth in the Approved Form of its Contract of Sale or Offering Plan, (yii) a contingency for Mortgage Borrower’s obligation to consummate the closing in accordance with the provisions of the Residential Unit Contract of Sale on or before the date set forth therein for such closing, which date shall not be prior to the date set forth in the Anticipated TCO Date Schedule for said Subdivided Residential Unit, and (z) occurs under a financing contingency on then current market terms and conditions, provided that any Residential Unit Contract of Sale that contains a financing contingency shall not be included in the calculation of Residential Net Sale Proceeds in connection Mortgage Borrower’s compliance with the Sales Pace Covenant until such time as the financing contingency has been satisfied, expired by its terms or been waived in writing by the purchaser thereunder, or the closing under such Residential Unit Contract of Sale has occurred;
(v) such Residential Unit Contract of Sale requires the applicable Residential Unit Purchaser upon execution thereof, to make a cash deposit of not less than ten percent (10%) of the gross sales price of the Subdivided Residential Unit, unless Borrower obtains (or causes Mortgage Borrower to obtain) Administrative Agent’s prior written consent to a deposit in an amount less than ten percent (10%) of the gross sales price of the applicable Subdivided Residential Unit, which consent shall not be unreasonably withheld, conditioned or delayed;
(vi) such Residential Unit Contract of Sale provides for the entire purchase price and other payments thereunder payable to Mortgage Borrower, as seller under the Residential Unit Contract of Sale, to whereupon the Contract Deposit shall be paid by wire transferapplied on account of the payment required under Section 14.4(a)(viii) or Section 14.4(b)(viii), bank check or certified funds at the closing of such Subdivided Residential Unit (either by means of an all-cash sale, or from institutional financing obtained by the purchaser);
(vii) intentionally omitted;
(viii) the Offering Plan and the other Condominium Documents shall have been submitted to and approved by Administrative Agent and the Offering Plan has been accepted for filing by the Attorney General;
(ix) Borrower shall not cause or permit Mortgage Borrower to enter into a Bulk Sale without Administrative Agent’s prior consent, which consent may be granted or withheld in Administrative Agent’s sole and absolute discretion; and
as applicable. If (x) Notwithstanding anything herein a purchaser defaults under a Contract of Sale and (y) the Contract Deposit is paid to Borrower, Borrower shall pay such Contract Deposit to the contraryAgent, for application to the Debt in accordance with Section 21.1. Notwithstanding the above, Borrower shall first apply the Available Contract Deposits towards funding the Construction pursuant to the Construction Budget, provided that: (i) Borrower shall not cause or permit Mortgage has duly complied with all applicable laws pertaining to the use of such Contract Deposits for construction costs and delivers to the Agent Borrower’s certification as to such compliance in accordance with Section 9.1(j), (ii) Borrower to sell any Subdivided Residential Unit to an Affiliate or relative has duly complied with Article IX of Borrower, Mortgage Borrower, Indemnitor or any Principal without Administrative Agent’s approval, which approval shall be in Administrative Agent’s sole and absolute discretionthis Agreement, and (iiiii) any closing expenses, fees, charges or otherwise incurred by Borrower or Mortgage Borrower in connection with the sale no Event of a Subdivided Residential Unit shall only be paid to third parties unaffiliated with Borrower, Mortgage Borrower, Indemnitor or any Principal, unless payment of such expense Default has occurred and is approved by Administrative Agent, which approval shall be in Administrative Agent’s sole and absolute discretioncontinuing.
(c) Borrower shall not cause or permit Mortgage Borrower to enter into a contract for the sale of the Retail Unit (a “Retail Unit Contract of Sale”) unless it has been approved in writing by Administrative Agent (which approval shall not be unreasonably withheld, conditioned or delayed) and all of the following conditions shall have been satisfied:
Appears in 1 contract
Sources: Construction Loan Agreement (Maui Land & Pineapple Co Inc)
Contracts of Sale. (a) Administrative Agent hereby approves Schedule H attached hereto sets for the Residential Unit Contracts of Sale executed prior to that have been entered into and are in effect as of the date hereof (the “Existing Residential Unit Contracts”), together with the deposits that are being held in escrow with respect to each such Residential Unit Contract of Sale. Lender hereby approves the Existing Residential Unit Contracts. Borrower represents and warrants that (i) each such deposit is being held at K▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & F▇▇▇▇▇▇ LLP, (ii) all Existing Residential Unit Contracts are the valid and binding obligation of Borrower and, to Borrower’s actual knowledge, the purchaser (subject to principles of equity and bankruptcy, insolvency and other laws generally applicable to creditors’ rights and the enforcement of debtors’ obligations; and assuming the competence, of the purchaser and the execution and delivery of the applicable contract to Borrower by the purchaser) and are not rescindable for any reason, except as described approved by Lender with respect to an individual Existing Residential Unit Contract, as required in accordance with applicable Legal Requirements (including future directives of the Attorney General) or as otherwise set forth in the Offering Plan or in such Existing Residential Unit Contracts, (iii) except as set forth on Exhibit I attached heretoSchedule H, any financing contingency set forth in an Existing Residential Unit Contract has lapsed (without being exercised by the applicable purchaser) and is no longer exercisable by the applicable purchaser. To Borrower’s actual knowledge, as of the date hereof, no event has occurred which is currently continuing that would permit a purchaser under an Existing Residential Unit Contract to rescind such Existing Residential Unit Contract.
(b) Borrower shall not cause or permit Mortgage Borrower to enter into a Residential Unit Contract of Sale unless said Residential Unit Contract of Sale is in compliance with the terms and conditions of this Agreement and the Mortgage Loan Agreement. Each Residential Unit Contract of Sale shall be on the Approved Form of Contract of Sale (subject only to customary non-material negotiated revisions to said form that have no material adverse effect on Borrower, Mortgage Borrower, Administrative Agent, Lender or the Project), and all of the following conditions shall have been satisfied:
(i) The purchase price under such Residential Unit Contract of Sale for a Subdivided Residential Unit shall be result in the payment of Residential Unit Net Sale Proceeds greater than or equal to the Residential Unit Minimum Sales Release Price for such Subdivided Residential Unit;
(ii) such Residential Unit Contract of Sale shall not provide for Mortgage Borrower, as seller, to provide any seller financing or to take back any purchase money mortgages as part of the sales price;
(iii) such Residential Unit Contract of Sale shall not be subject to cancellation, except as (I) provided in the Offering Plan, (II) required by the Condominium Laws (including those requiring disclosures to prospective and actual purchasers), (III) required by the Attorney General and/or (IV) provided in the Approved Form of Contract of Sale;
(iv) such Residential Unit Contract of Sale shall have no contingencies thereunder, unless otherwise approved by Administrative Agent Lender in writing, except (w) Substantial Completion of the Construction Work, (x) those set forth in the Approved Form of Contract of Sale or Offering Plan, (y) a contingency for Mortgage Borrower’s obligation to consummate the closing in accordance with the provisions of the Residential Unit Contract of Sale on or before the date set forth therein for such closing, which date shall not be prior to the date set forth in the Anticipated TCO Date on Schedule I attached hereto for said Subdivided Residential Unit, and (z) a financing contingency on then then-current market terms and conditions, provided that any Residential Unit Contract of Sale that contains a financing contingency shall not be included in the calculation of Residential Net Sale Proceeds in connection Mortgage Borrower’s compliance with the Sales Pace Covenant until such time as the financing contingency has been satisfied, expired by its terms or been waived in writing by the purchaser thereunder, or the closing under such Residential Unit Contract of Sale has occurred;
(v) such Residential Unit Contract of Sale requires the applicable Residential Unit Purchaser upon execution thereof, to make a cash deposit of not less than ten percent (10%) of the gross sales price of the Subdivided Residential Unit, unless Borrower obtains (or causes Mortgage Borrower to obtain) Administrative AgentLender’s prior written consent to a deposit in an amount less than ten percent (10%) of the gross sales price of the applicable Subdivided Residential Unit, which consent shall not be unreasonably withheld, conditioned or delayed;
(vi) such Residential Unit Contract of Sale provides for the entire purchase price and other payments thereunder payable to Mortgage Borrower, as seller under the Residential Unit Contract of Sale, to be paid by wire transfer, bank check or certified funds at the closing of such Subdivided Residential Unit (either by means of an all-cash sale, or from institutional financing obtained by the purchaser);
(vii) intentionally omittedsuch Residential Unit Contract of Sale and the proceeds thereof shall have been collaterally assigned to Lender, subject to Legal Requirements and the rights of the purchaser thereunder;
(viii) the Offering Plan and the other Condominium Documents shall have been submitted to and approved by Administrative Agent and the Offering Plan has been accepted for filing by the Attorney General[intentionally omitted];
(ix) Borrower shall not cause or permit Mortgage Borrower to enter into a Bulk Sale without Administrative AgentLender’s prior consent, which consent may be granted or withheld in Administrative AgentLender’s sole and absolute discretion; and
(x) Notwithstanding anything herein to the contrary, (i) Borrower shall not cause or permit Mortgage Borrower to sell any Subdivided Residential Unit to an Affiliate or relative of Borrower, Mortgage Borrower, Indemnitor or any Principal without Administrative AgentLender’s approval, which approval shall be in Administrative AgentLender’s sole and absolute discretion, and (ii) any closing expenses, fees, charges or otherwise incurred by Borrower or Mortgage Borrower in connection with the sale of a Subdivided Residential Unit shall only be paid to third parties unaffiliated with Borrower, Mortgage Borrower, Indemnitor or any Principal, unless payment of such expense is approved by Administrative AgentLender, which approval shall be in Administrative AgentLender’s sole and absolute discretion. The approval by Lender of any Residential Unit Contract of Sale shall not obligate Lender to release any Residential Unit from the lien of the Mortgage, unless the release requirements of Lender as set forth in Section 16.3 of this Agreement are satisfied.
(c) Borrower shall not cause or permit Mortgage Borrower to enter into a contract for the sale of the Retail Unit (a “Retail Unit Contract of Sale”) unless it has been approved in writing by Administrative Agent (which approval shall not be unreasonably withheld, conditioned or delayed) and all of the following conditions shall have been satisfied:
Appears in 1 contract
Sources: Master Loan Agreement (Trinity Place Holdings Inc.)
Contracts of Sale. (a) Administrative Agent hereby approves Exhibit I attached hereto sets for the Residential Unit Contracts of Sale executed prior to that have been entered into and are in effect as of the date hereof (the “Existing Residential Unit Contracts”), together with the deposits that are being held in escrow with respect to each such Residential Unit Contract of Sale. Administrative Agent hereby approves the Existing Residential Unit Contracts. Borrower represents and warrants that (i) each such deposit is being held at K▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & F▇▇▇▇▇▇ LLP, (ii) all Existing Residential Unit Contracts are the valid and binding obligation of Mortgage Borrower and, to Borrower’s actual knowledge, the purchaser (subject to principles of equity and bankruptcy, insolvency and other laws generally applicable to creditors’ rights and the enforcement of debtors’ obligations; and assuming the competence, of the purchaser and the execution and delivery of the applicable contract to Mortgage Borrower by the purchaser) and are not rescindable for any reason, except as described approved by Administrative Agent with respect to an individual Existing Residential Unit Contract, as required in accordance with applicable Legal Requirements (including future directives of the Attorney General) or as otherwise set forth in the Offering Plan or in such Existing Residential Unit Contracts, (iii) except as set forth on Exhibit I attached heretoI, any financing contingency set forth in an Existing Residential Unit Contract has lapsed (without being exercised by the applicable purchaser) and is no longer exercisable by the applicable purchaser. To Borrower’s actual knowledge, as of the date hereof, no event has occurred which is currently continuing that would permit a purchaser under an Existing Residential Unit Contract to rescind such Existing Residential Unit Contract.
(b) Borrower shall not cause or permit Mortgage Borrower to enter into a Residential Unit Contract of Sale unless said Residential Unit Contract of Sale is in compliance with the terms and conditions of this Agreement and the Mortgage Loan Agreement. Each Residential Unit Contract of Sale shall be on the Approved Form of Contract of Sale (subject only to customary non-material negotiated revisions to said form that have no material adverse effect on Borrower, Mortgage Borrower, Administrative Agent, Lender or the Project), and all of the following conditions shall have been satisfied:
(i) The purchase price under such Residential Unit Contract of Sale for a Subdivided Residential Unit shall be result in the payment of Residential Unit Net Sale Proceeds greater than or equal to the Residential Unit Minimum Sales Release Price for such Subdivided Residential Unit;
(ii) such Residential Unit Contract of Sale shall not provide for Mortgage Borrower, as seller, to provide any seller financing or to take back any purchase money mortgages as part of the sales price;
(iii) such Residential Unit Contract of Sale shall not be subject to cancellation, except (A) as provided in the Offering Plan, (B) required by the Condominium Laws (including those requiring disclosures to prospective and actual purchasers), (C) required by the Attorney General and/or (D) provided in the Approved Form of Contract of Sale;
(iv) such Residential Unit Contract of Sale shall have no contingencies thereunder, unless otherwise approved by Administrative Agent in writing, except (w) Substantial Completion of the Construction Work, (x) those set forth in the Approved Form of Contract of Sale or Offering Plan, (y) a contingency for Mortgage Borrower’s obligation to consummate the closing in accordance with the provisions of the Residential Unit Contract of Sale on or before the date set forth therein for such closing, which date shall not be prior to the date set forth in the Anticipated TCO Date Schedule on Exhibit J attached hereto for said Subdivided Residential Unit, and (z) a financing contingency on then current market terms and conditions, provided that any Residential Unit Contract of Sale that contains a financing contingency shall not be included in the calculation of Residential Net Sale Proceeds in connection Mortgage Borrower’s compliance with the Sales Pace Covenant until such time as the financing contingency has been satisfied, expired by its terms or been waived in writing by the purchaser thereunder, or the closing under such Residential Unit Contract of Sale has occurred;
(v) such Residential Unit Contract of Sale requires the applicable Residential Unit Purchaser upon execution thereof, to make a cash deposit of not less than ten percent (10%) of the gross sales price of the Subdivided Residential Unit, unless Borrower obtains (or causes Mortgage Borrower to obtain) Administrative Agent’s prior written consent to a deposit in an amount less than ten percent (10%) of the gross sales price of the applicable Subdivided Residential Unit, which consent shall not be unreasonably withheld, conditioned or delayed;
(vi) such Residential Unit Contract of Sale provides for the entire purchase price and other payments thereunder payable to Mortgage Borrower, as seller under the Residential Unit Contract of Sale, to be paid by wire transfer, bank check or certified funds at the closing of such Subdivided Residential Unit (either by means of an all-cash sale, or from institutional financing obtained by the purchaser);
(vii) intentionally omitted;
(viii) the Offering Plan and the other Condominium Documents shall have been submitted to and approved by Administrative Agent and the Offering Plan has been accepted for filing by the Attorney Generalintentionally omitted;
(ix) Borrower shall not cause or permit Mortgage Borrower to enter into a Bulk Sale without Administrative Agent’s prior consent, which consent may be granted or withheld in Administrative Agent’s sole and absolute discretion; and
(x) Notwithstanding anything herein to the contrary, (i) Borrower shall not cause or permit Mortgage Borrower to sell any Subdivided Residential Unit to an Affiliate or relative of Borrower, Mortgage Borrower, Indemnitor or any Principal without Administrative Agent’s approval, which approval shall be in Administrative Agent’s sole and absolute discretion, and (ii) any closing expenses, fees, charges or otherwise incurred by Borrower or Mortgage Borrower in connection with the sale of a Subdivided Residential Unit shall only be paid to third parties unaffiliated with Borrower, Mortgage Borrower, Indemnitor or any Principal, unless payment of such expense is approved by Administrative Agent, which approval shall be in Administrative Agent’s sole and absolute discretion.
(c) Borrower shall not cause or permit Mortgage Borrower to enter into a contract for the sale of the Retail Unit (a “Retail Unit Contract of Sale”) unless it has been approved in writing by Administrative Agent (which approval shall not be unreasonably withheld, conditioned or delayed) and all of the following conditions shall have been satisfied:
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Trinity Place Holdings Inc.)
Contracts of Sale. (a) Administrative Agent hereby approves the Residential Unit Borrower shall not enter into any Contracts of Sale, other than Qualifying Contracts of Sale. Unless Borrower has theretofore obtained Lender’s prior written consent thereto, Borrower may not enter into Contracts of Sale executed prior with Guarantor, or Affiliates of Borrower or Guarantor. Notwithstanding the previous sentence, Lender hereby consents to the sale of Units pursuant to the ER Purchase Agreement and Lender’s consent shall not be required with respect to immaterial amendments to the form Contract of Sale previously approved by Lender for sale of each individual Unit to be sold under the ER Purchase Agreement, to conform to the ER Purchase Agreement, provided that no amendment shall be made to the sale price set forth in the ER Purchase Agreement in effect on the date hereof hereof. Lender shall not unreasonably withhold such consent, provided that the applicable Contract of Sale (i) satisfies the requirements of the definition of “Qualifying Contract of Sale” contained herein and (ii) is otherwise on an arm’s length, commercially reasonable basis. All Contracts of Sale entered into by Borrower after the Effective Date shall be covered by the Assignment of Purchase Contracts and, in each case, if required by Lender, by a separate assignment in form and substance similar to the Assignment of Purchase Contracts. Notwithstanding anything to the contrary in this Agreement, Lender hereby consents to the sale of Units pursuant to the ER Purchase Agreement and any individual purchase agreements entered into pursuant to the ER Purchase Agreement so long as described on Exhibit I attached heretothe purchaser under each such individual agreement is Exclusive Resorts or any of its Affiliates.
(b) Borrower All Contract Deposits shall not cause or permit Mortgage Borrower be deposited and held in the Condominium Deposit Account until such time as (i) a purchaser becomes entitled to enter into a Residential Unit Contract of Sale unless said Residential Unit Contract of Sale is the refund thereof in compliance accordance with the terms and conditions of this Agreement and the Mortgage Loan Agreement. Each Residential Unit Contract of Sale shall be on the Approved Form of Contract of Sale (subject only to customary non-material negotiated revisions to said form that have no material adverse effect on Borrower, Mortgage Borrower, Administrative Agent, Lender or the Project), and all of the following conditions shall have been satisfied:
(i) The purchase price under such Residential Unit Contract of Sale for a Subdivided Residential Unit shall be greater than or equal to the Residential Unit Minimum Sales Price for such Subdivided Residential Unit;
(ii) such Residential Unit Contract of Sale shall not provide for Mortgage Borrower, as seller, to provide any seller financing or to take back any purchase money mortgages as part of the sales price;
(iii) such Residential Unit Contract of Sale shall not be subject to cancellation, except as provided in the Offering Plan, by the Condominium Laws (including those requiring disclosures to prospective and actual purchasers) and/or the Approved Form of Contract of Sale;
(iv) such Residential Unit Contract of Sale shall have no contingencies thereunder, unless otherwise approved by Administrative Agent in writing, except (w) Completion of the Construction Work, (x) those set forth in the Approved Form of its Contract of Sale or Offering Plan, (yii) a contingency for Mortgage Borrower’s obligation to consummate the closing in accordance with the provisions of the Residential Unit Contract of Sale on or before the date set forth therein for such closing, which date shall not be prior to the date set forth in the Anticipated TCO Date Schedule for said Subdivided Residential Unit, and (z) occurs under a financing contingency on then current market terms and conditions, provided that any Residential Unit Contract of Sale that contains a financing contingency shall not be included in the calculation of Residential Net Sale Proceeds in connection Mortgage Borrower’s compliance with the Sales Pace Covenant until such time as the financing contingency has been satisfied, expired by its terms or been waived in writing by the purchaser thereunder, or the closing under such Residential Unit Contract of Sale has occurred;
(v) such Residential Unit Contract of Sale requires the applicable Residential Unit Purchaser upon execution thereof, to make a cash deposit of not less than ten percent (10%) of the gross sales price of the Subdivided Residential Unit, unless Borrower obtains (or causes Mortgage Borrower to obtain) Administrative Agent’s prior written consent to a deposit in an amount less than ten percent (10%) of the gross sales price of the applicable Subdivided Residential Unit, which consent shall not be unreasonably withheld, conditioned or delayed;
(vi) such Residential Unit Contract of Sale provides for the entire purchase price and other payments thereunder payable to Mortgage Borrower, as seller under the Residential Unit Contract of Sale, to whereupon the Contract Deposit shall be paid by wire transfer, bank check or certified funds at applied on account of the closing of such Subdivided Residential Unit (either by means of an all-cash sale, or from institutional financing obtained by the purchaser);
(viipayment required under Section 15.4(h) intentionally omitted;
(viii) the Offering Plan and the other Condominium Documents shall have been submitted to and approved by Administrative Agent and the Offering Plan has been accepted for filing by the Attorney General;
(ix) Borrower shall not cause or permit Mortgage Borrower to enter into a Bulk Sale without Administrative Agent’s prior consent, which consent may be granted or withheld in Administrative Agent’s sole and absolute discretion; and
below. If (x) Notwithstanding anything herein a purchaser defaults under a Contract of Sale and (y) the Contract Deposit is paid to Borrower, Borrower shall pay such Contract Deposit to Lender, for application to the contraryDebt in such order of priority as Lender shall elect in its sole discretion. Notwithstanding the above, Borrower shall first apply the Available Contract Deposits towards funding the Construction pursuant to the Construction Budget, provided that: (i) Borrower shall not cause or permit Mortgage has duly complied with all applicable laws pertaining to the use of such Contract Deposits for construction costs and delivers to Lender Borrower’s certification as to such compliance in accordance with Section 10.1(k), (ii) Borrower delivers to sell any Subdivided Residential Unit to an Affiliate or relative Lender documentation that complies with Sections 9.1(b) and (c) of Borrowerthis Agreement, Mortgage Borrower, Indemnitor or any Principal without Administrative Agent’s approval, which approval shall be in Administrative Agent’s sole and absolute discretion(iii) Borrower has duly complied with Article X of this Agreement, and (iiiv) any closing expenses, fees, charges or otherwise incurred by Borrower or Mortgage Borrower in connection with the sale no Event of a Subdivided Residential Unit shall only be paid to third parties unaffiliated with Borrower, Mortgage Borrower, Indemnitor or any Principal, unless payment of such expense Default has occurred and is approved by Administrative Agent, which approval shall be in Administrative Agent’s sole and absolute discretioncontinuing.
(c) Borrower shall not cause or permit Mortgage Borrower to enter into a contract for the sale of the Retail Unit (a “Retail Unit Contract of Sale”) unless it has been approved in writing by Administrative Agent (which approval shall not be unreasonably withheld, conditioned or delayed) and all of the following conditions shall have been satisfied:
Appears in 1 contract
Sources: Construction Loan Agreement (Maui Land & Pineapple Co Inc)
Contracts of Sale. (a) Administrative Agent hereby approves On or before December 22, 2019, and simultaneously with the submission of the Offering Plan, Borrower shall submit to Lender for Lender’s review and approval (which approval shall not be unreasonably withheld, conditioned or delayed) the standard form of purchase and sale agreement to be used by Borrower in connection with the sale of the Subdivided Residential Unit Contracts Units. Lender shall complete its review of Sale executed the form of purchase and sale agreement within thirty (30) days following its receipt of same and simultaneously with its review of the Offering Plan, and shall either approve or disapprove the same within said thirty (30) day period. If Lender disapproves any such draft, Lender shall provide Borrower with a reasonably detailed explanation for Lender’s disapproval thereof, and Borrower shall then re-submit a revised draft of the same to Lender as soon as reasonably practicable. Borrower shall cause the revised standard form of purchase and sale agreement to address the reasonable concerns or reasons for Lender’s disapproval of the prior drafts of the same. Lender and Borrower shall repeat this process until any such requested draft form of purchase and sale agreement is approved by Lender, which approved form of purchase and sale agreement shall be referred herein to as the date hereof as described on Exhibit I attached hereto“Approved Form of Contract of Sale”.
(b) Borrower shall not cause or permit Mortgage Borrower to enter into a Residential Unit Contract of Sale unless said Residential Unit Contract of Sale is in compliance with the terms and conditions of this Agreement and the Mortgage Loan Agreement. Each Residential Unit Contract of Sale shall be on the Approved Form of Contract of Sale (subject only to customary non-material negotiated revisions to said form that have no material adverse effect on Borrower, Mortgage Borrower, Administrative Agent, Lender or the Project), and all of the following conditions shall have been satisfied:
(i) The purchase price under such Residential Unit Contract of Sale for a Subdivided Residential Unit shall be greater than or equal to the Residential Unit Minimum Sales Price for such Subdivided Residential Unit;
(ii) such Residential Unit Contract of Sale shall not provide for Mortgage Borrower, as seller, to provide any seller financing or to take back any purchase money mortgages as part of the sales price;
(iii) such Residential Unit Contract of Sale shall not be subject to cancellation, except as provided in the Offering Plan, by the Condominium Laws (including those requiring disclosures to prospective and actual purchasers) and/or the Approved Form of Contract of Sale;
(iv) such Residential Unit Contract of Sale shall have no contingencies thereunder, unless otherwise approved by Administrative Agent Lender in writing, except (wy) Completion of the Construction Work, Work and (xz) those set forth in the Approved Form of Contract of Sale or Offering Plan, (y) a contingency for Mortgage Borrower’s obligation to consummate the closing in accordance with the provisions of the Residential Unit Contract of Sale on or before the date set forth therein for such closing, which date shall not be prior to the date set forth in the Anticipated TCO Date Schedule for said Subdivided Residential Unit, and (z) a financing contingency on then current market terms and conditions, provided that any Residential Unit Contract of Sale that contains a financing contingency shall not be included in the calculation of Residential Net Sale Proceeds in connection Mortgage Borrower’s compliance with the Sales Pace Covenant until such time as the financing contingency has been satisfied, expired by its terms or been waived in writing by the purchaser thereunder, or the closing under such Residential Unit Contract of Sale has occurred;
(v) such Residential Unit Contract of Sale requires the applicable Residential Unit Purchaser upon execution thereof, to make a cash deposit of not less than ten percent (10%) of the gross sales price of the Subdivided Residential Unit, unless Borrower obtains (or causes Mortgage Borrower to obtain) Administrative AgentLender’s prior written consent to a deposit in an amount less than ten percent (10%) of the gross sales price of the applicable Subdivided Residential Unit, which consent shall not be unreasonably withheld, conditioned or delayed;
(vi) such Residential Unit Contract of Sale provides for the entire purchase price and other payments thereunder payable to Mortgage Borrower, as seller under the Residential Unit Contract of Sale, to be paid by wire transfer, bank check or certified funds at the closing of such Subdivided Residential Unit (either by means of an all-cash sale, or from institutional financing obtained by the purchaser);
(vii) intentionally omittedsuch Residential Unit Contract of Sale and the proceeds thereof shall have been collaterally assigned to Lender, subject to Legal Requirements and the rights of the purchaser thereunder;
(viii) the Offering Plan and the other Condominium Documents shall have been submitted to and approved by Administrative Agent Lender and the Offering Plan has been accepted for filing by the Attorney General;
(ix) Borrower shall not cause or permit Mortgage Borrower to enter into a Bulk Sale without Administrative AgentLender’s prior consent, which consent may be granted or withheld in Administrative AgentLender’s sole and absolute discretion; and
(x) Notwithstanding anything herein to the contrary, (i) Borrower shall not cause or permit Mortgage Borrower to sell any Subdivided Residential Unit to an Affiliate or relative of Borrower, Mortgage Borrower, Indemnitor or any Principal without Administrative AgentLender’s approval, which approval shall be in Administrative AgentLender’s sole and absolute discretion, and (ii) any closing expenses, fees, charges or otherwise incurred by Borrower or Mortgage Borrower in connection with the sale of a Subdivided Residential Unit shall only be paid to third parties unaffiliated with Borrower, Mortgage Borrower, Indemnitor or any Principal, unless payment of such expense is approved by Administrative AgentLender, which approval shall be in Administrative AgentLender’s sole and absolute discretion. The approval by Lender of any Residential Unit Contract of Sale shall not obligate Lender to release any Subdivided Residential Unit from the lien of the Mortgage, unless the release requirements of Lender as set forth in this Agreement are satisfied.
(c) Borrower shall not cause or permit Mortgage Borrower to enter into a contract for the sale of the Retail Unit (a “Retail Unit Contract of Sale”) unless it has been approved in writing by Administrative Agent Lender (which approval shall not be unreasonably withheld, conditioned or delayed) and all of the following conditions shall have been satisfied:
Appears in 1 contract
Sources: Master Loan Agreement (Trinity Place Holdings Inc.)