Condominium. (a) The Declaration (including the Bylaws) and the Condominium Plans are in compliance in all material respects with all Condominium Laws. Borrower shall not modify or amend the Declaration (including the Bylaws) and/or the Condominium Plans without Lender’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, provided (i) no Event of Default exists, (ii) such amendment or modification complies with all Condominium Laws, and (iii) the SCA has approved the amendment in writing to the extent it has approval rights thereto under the School Unit Purchase Agreement. (b) Borrower agrees 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 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 not consent to the merger of the Condominium with any other condominium without Lender’s prior written consent, which may be withheld in its 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) Business 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) Borrower will pay, or cause to be paid, all assessments for common charges and expenses made against the Mortgaged Property owned by Borrower pursuant to the Condominium Documents as the same shall become due and payable; (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 be in force and effect from time to time; (iv) Borrower, or 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 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 following the expiration of all applicable appeal periods, any material provision of the Condominium Documents is held to 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 (B) 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, cause the Condominium Board of Managers to maintain insurance on the Condominium in accordance with the Condominium Documents and this Agreement; and (x) For so long as Borrower controls the Condominium Board of Managers, Borrower, in accordance with Borrower’s rights under the Condominium Documents, shall cause the Condominium Board of Managers to enforce the Management Agreement.
Appears in 1 contract
Sources: Master Loan Agreement (Trinity Place Holdings Inc.)
Condominium. With respect to the Condominium:
(a) The Declaration (including the Bylaws) Condominium has been legally and validly created pursuant to all Legal Requirements and the Condominium Plans are in compliance in all material respects with all Documents. To Condominium Laws. Borrower shall not modify or amend the Declaration (including the Bylaws) and/or Borrower’s knowledge, the Condominium Plans without LenderDocuments are valid and enforceable and in full force and effect and there currently exists no default or event of default, after the expiration of all applicable notice or cure periods thereunder by Condominium Borrower or by any other party thereto. To Condominium Borrower’s prior written consentknowledge, which none of the Condominium Documents have been modified, amended or supplemented. Condominium Borrower has delivered to Lender a true, complete and correct copy of each of the Condominium Documents. No consent shall not be unreasonably withheld, conditioned or delayed, provided (i) no Event of Default exists, (ii) such amendment or modification complies with all Condominium Laws, and (iii) the SCA has approved the amendment in writing to the extent it has approval rights thereto under the School Condominium Documents is required for Condominium Borrower to mortgage the Unit Purchase Agreementother than those that have been obtained as of the Closing Date.
(b) Borrower agrees that:
(i) Borrower shall not, without LenderTo Condominium Borrower’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 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 not consent to the merger of the Condominium with any other condominium without Lender’s prior written consent, which may be withheld in its 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) Business 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) Borrower will pay, or cause to be paidknowledge, all assessments for common charges Assessments (if any) due and expenses made against the Mortgaged Property owned payable by Condominium Borrower pursuant to the Condominium Documents as of the same shall become due date hereof have been fully paid. There are currently no special, supplemental or otherwise extraordinary Assessments pending or, to ▇▇▇▇▇▇▇▇’s knowledge, proposed (other than regular, annual Assessments) by the Condominium Board, and payable;to Borrower’s knowledge, no working capital reserves have been established with respect to the Condominium.
(iiic) Condominium Borrower will comply is the owner of Unit 3 (as defined in all material respects with all the Condominium Documents) and does not own any other unit of the terms, covenants and conditions on Condominium. Condominium 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 be percentage interest in force and effect from time to time;
(iv) Borrower, or 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 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 following the expiration of all applicable appeal periods, any material provision of the Condominium Documents is held to 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 (B) 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 is 27.81%. Condominium Borrower is able to exercise all rights set forth in the Loan Documents without being subject to any restriction set forth in the Condominium Plans Documents.
(d) No party to the Condominium Documents has a right of first refusal or otherwise disclosed in an option to purchase the Offering Planapplicable Individual Property.
(e) Condominium Borrower, except as such additions and to Condominium Borrower’s knowledge, the applicable Tenant or improvements may the Condominium Board currently maintains (or shall cause to be required by Legal Requirements, (Bmaintained) any borrowing on behalf insurance coverage with respect to all of the Condominium or (C) Common Elements which comprise a portion of, and are appurtenant to, 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 applicable Individual Property 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, cause the Condominium Board of Managers to maintain insurance on the Condominium in accordance with the Condominium Documents and this Agreement; and
(x) For so long as Borrower controls the Condominium Board of Managers, Borrower, in accordance with Borrower’s rights under the Condominium Documents, shall cause the Condominium Board of Managers to enforce the Management Agreement.
Appears in 1 contract
Condominium. (a) The 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 (including the Bylaws) and the Condominium Plans are By-Laws substantially in compliance the form attached as Exhibit E to the Operating Agreement, as the same is to be amended in all material respects accordance with all Condominium Laws. Borrower shall the First Amendment) and (y) Agent’s approval, not modify or amend the Declaration (including the Bylaws) and/or the Condominium Plans without Lender’s prior written consent, which consent shall not to be unreasonably withheld, conditioned or delayedshall 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., provided (i) no Event Exhibits C, D and G of Default existsthe Condominium Declaration), (ii) such amendment or modification complies cause the Condominium Documents to comply with all Condominium Lawsapplicable Legal Requirements, and (iii) cause the SCA has approved Condominium Documents to be filed in the amendment in writing appropriate public offices and the condominium thereunder to be validly created on or prior to the extent it has approval rights thereto under achievement of Core and Shell Completion and (vi) from and after the School Unit Purchase Agreementdate 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 agrees thatnor 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 nothave 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 Lender’s prior written consentlimitation, which consent shall not be unreasonably withhelda title continuation), conditioned certificates, instruments, opinions or delayed provided assurances as Agent may reasonably request; and
(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 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 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 consent to the merger of the Condominium with any other condominium without Lender’s prior written consent, which may be withheld in its 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) Business 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 less than ten (10) Business Days after such second request, then as long as no Event notice of Default any meeting of the condominium board and shall cause Agent or Potential Event of Default exists, the same shall be deemed approved;
(ii) Borrower will pay, or cause any representative thereof to be paid, all assessments for common charges and expenses made against the Mortgaged Property owned permitted to attend any such meeting. Upon reasonable notice by Borrower pursuant to the Condominium Documents as the same shall become due and payable;
(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 be in force and effect from time to time;
(iv) Borrower, or 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 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 following the expiration of all applicable appeal periods, any material provision of the Condominium Documents is held to 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 (B) 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 LawsAgent, Borrower shall control cause Agent or any representative thereof to be permitted to inspect the Condominium books and records of the 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 FC Board of Managers, Borrower will, Managers (as each such term is defined in accordance with Borrower’s rights under the Condominium Documents, cause the Condominium Board of Managers to maintain insurance on the Condominium in accordance with the Condominium Documents and this Agreement; and
(x) For so long as Borrower controls the Condominium Board of Managers, Borrower, in accordance with Borrower’s rights under the Condominium Documents, shall cause the Condominium Board of Managers to enforce the Management Agreement).
Appears in 1 contract
Condominium. (Borrower represents and warrants that:
a) The Declaration (including the Bylaws) ▇▇▇▇▇▇▇▇ has delivered to Lender true, correct and complete copies of each of the Condominium Plans Documents and there are no amendments of or modifications to any Condominium Documents except as disclosed in writing to Lender;
b) the Condominium Documents are in compliance in all material respects with all Condominium Laws. Borrower shall not modify or amend the Declaration (including the Bylawsfull force and effect;
c) and/or the Condominium Plans without LenderDocuments do not prohibit the granting of the lien of the Security Instrument;
d) all charges, fees, assessments and 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 prior written consentknowledge, which consent shall not be unreasonably withheldany other Person under any Condominium Document to the extent such default or breach would individually or in the aggregate have a Material Adverse Effect;
f) to ▇▇▇▇▇▇▇▇’s knowledge, conditioned neither the Condominium Board nor any other party to a Condominium Document has any defense, set-off or delayed, provided (icounterclaim against Borrower or all or any portion of the Property;
g) no conditions exist that, now or after notice or the passage of time, or both, would constitute an Event of Default exists, (iias defined in the Condominium Documents) such amendment or modification complies with all Condominium Laws, and (iii) the SCA has approved the amendment in writing to the extent it has approval rights thereto by Borrower under the School Unit Purchase Agreement.
(b) Borrower agrees Condominium Documents, and, to Borrower’s knowledge, no events exist that:
(i) Borrower shall not, without Lender’s prior written consentnow or after notice or the passage of time, which consent shall not be unreasonably withheldor both, conditioned or delayed provided (x) no would constitute an Event of Default exists and (yas defined in the Condominium Documents) such amendment or modification complies with all Condominium Laws, amend, modify or supplement, or consent to or suffer the amendment, modification or supplementation of by any Person other than Borrower under any of the Condominium Documents (except with respect Documents;
h) Borrower has no knowledge of any special assessments or pending assessments which have been called for in writing to (1which Borrower would be subject under the Condominium Documents;
i) 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 all of the Offering Plan). Borrower shall not consent to the merger members of the Condominium Board are listed on Schedule VIII attached hereto together with any other condominium without Lender’s prior written consent, which may be withheld in its sole and absolute discretion. Lender shall endeavor to respond to current contact information for each request by Borrower for Lender’s approval of an amendment to the Condominium Documents within twenty (20) Business 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 same. Borrower has the right to appoint three (103) 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 five (5) 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) Borrower will pay, or cause to be paid, all assessments for common charges and expenses made against the Mortgaged Property owned by Borrower pursuant to the Condominium Documents as the same shall become due and payable;
(iii) Borrower will comply in all material respects with all of the terms, covenants and conditions on Borrower’s part to be complied with, Board members pursuant to the Condominium Documents and any rules and regulations that may be adopted for the Condominium, as the same shall be in force and effect from time to timeeach such person(s) appointed by ▇▇▇▇▇▇▇▇ is identified on Schedule VIII attached hereto;
(ivj) Borrower, or Borrower’s designated members the 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, will take all actions foreclosure or conveyance in lieu of foreclosure as may be reasonably necessary from time to time to preserve and maintain provided in the Condominium Documents;
k) Unit 1 and Unit 9 (as defined in accordance with the Condominium Laws;
(vDocuments) 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 so withdrawn;
(vi) it shall be an Event of Default if (A) pursuant to any judgment, decision, order, rule or regulation is a separate parcel of either a court of competent jurisdiction or a governmental agency with jurisdiction over the Premises real property from Units 2 through 8 and following the expiration of all applicable appeal periods, any material provision of the Condominium Documents is held to 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 (B) 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 Requirements10, (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 borrowing on behalf court, administrative agency, or other Governmental Authority which brings into question that the validity 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 Managersor which, Borrower will, in accordance with Borrower’s rights under the Condominium Documents, cause the Condominium Board of Managers to maintain insurance on the Condominium in accordance with the Condominium Documents and this Agreement; and
(x) For so long as Borrower controls the Condominium Board of Managers, if determined adversely against Borrower, would reasonably be likely to result in accordance with Borrower’s rights under the Condominium Documents, shall cause the Condominium Board of Managers to enforce the Management Agreementany Material Adverse Effect.
Appears in 1 contract
Sources: Loan Agreement (SITE Centers Corp.)
Condominium. (a) The Declaration (including the Bylaws) and As it relates to the Condominium Plans are in compliance in all material respects with all Condominium Laws. Borrower shall not modify or amend created pursuant to the Declaration (including Master), Borrower has a 55.2278% aggregate percentage interest in the Bylaws) and/or Common Elements of the Condominium Plans without Lender’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, provided (i) no Event of Default exists, (ii) such amendment or modification complies with all and the remaining 44.7722% aggregate percentage interest in the Common Elements is owned entirely by the Sub-Units. The Condominium Laws, Units owned by Borrower and (iii) the SCA has approved Residential Master Unit are the amendment only Condominium Units in writing the Condominium created pursuant to the extent it has approval rights thereto under the School Unit Purchase AgreementDeclaration (Master).
(b) As it relates to the Condominium created pursuant to the Declaration (Hotel-Residential), Borrower agrees that:has a 61.2195% aggregate percentage interest in the Common Elements of the 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 Declaration (Hotel-Residential).
(ic) Each Condominium Document is in full force and effect in all material respects and constitutes the binding obligation of Borrower shall notand, without Lender’s prior written consentto Borrower's knowledge, which consent shall each other party thereto.
(d) Except as expressly set forth in the Exception Report, Borrower has not be unreasonably withheldconsented to any amendment or modification (oral or written) of any of the Condominium Documents, conditioned or delayed provided (x) no Event of Default exists and (y) nor, to Borrower's knowledge, does any such amendment or modification complies with all Condominium Laws, amend, modify (oral or supplement, or consent to or suffer the amendment, modification or supplementation 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 (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 Common Elements or any other property of the Offering Plan). Condominium.
(n) No disputes between Borrower shall not consent to and the merger owners of the Condominium with any Units other condominium without Lender’s prior written consent, which may be withheld in its sole and absolute discretion. Lender shall endeavor to respond to each request than the Condominium Units owned by Borrower for Lender’s approval of an amendment to and/or the Condominium Documents within twenty (20) Business Days following Lender’s receipt Associations that could result in a Material Adverse Effect, and, to Borrower's knowledge, no dispute between the owners 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 Units other than the Condominium Units owned by Borrower and submission by Borrower of all information needed by Lender to evaluate said request, then Borrower may deliver a second requestthe Condominium Associations, which request shall state on could result in a Material Adverse Effect, have been submitted to the top board of directors of the first page Condominium Associations or any other Person for resolution 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 accordance with the provisions of the proposed amendment to Condominium Documents.
(o) To Borrower's knowledge, there are no actions, whether voluntary or otherwise, pending against the owners of 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, Units other than the same shall be deemed approved;
(ii) Borrower will pay, or cause to be paid, all assessments for common charges and expenses made against the Mortgaged Property 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 as the same shall become due and payable;
(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 be in force and effect from time to time;
(iv) Borrower, or 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 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 following the expiration of all applicable appeal periods, any material provision of the Condominium Documents is held to 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 (B) 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, cause the Condominium Board of Managers to maintain insurance on the Condominium in accordance with the Condominium Documents and this Agreement; and
(x) For so long as Borrower controls the Condominium Board of Managers, Borrower, in accordance with Borrower’s rights under the Condominium Documents, shall cause the Condominium Board of Managers to enforce the Management Agreementotherwise.
Appears in 1 contract
Condominium. (a) The Declaration (including the Bylaws) and As it relates to the Condominium Plans are in compliance in all material respects with all Condominium Laws. Borrower shall not modify or amend created pursuant to the Declaration (including Master), Borrower has a 55.2278% aggregate percentage interest in the Bylaws) and/or Common Elements of the Condominium Plans without Lender’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, provided (i) no Event of Default exists, (ii) such amendment or modification complies with all and the remaining 44.7722% aggregate percentage interest in the Common Elements is owned entirely by the Sub-Units. The Condominium Laws, Units owned by Borrower and (iii) the SCA has approved Residential Master Unit are the amendment only Condominium Units in writing the Condominium created pursuant to the extent it has approval rights thereto under the School Unit Purchase AgreementDeclaration (Master).
(b) As it relates to the Condominium created pursuant to the Declaration (Hotel-Residential), Borrower agrees that:has a 61.2195% aggregate percentage interest in the Common Elements of the 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 Declaration (Hotel-Residential).
(ic) Each Condominium Document is in full force and effect in all material respects and constitutes the binding obligation of Borrower shall notand, without Lender’s prior written consentto Borrower's knowledge, which consent shall each other party thereto.
(d) Except as expressly set forth in the Exception Report, Borrower has not be unreasonably withheldconsented to any amendment or modification (oral or written) of any of the Condominium Documents, conditioned or delayed provided (x) no Event of Default exists and (y) nor, to Borrower's knowledge, does any such amendment or modification complies with all Condominium Laws, amend, modify (oral or supplement, or consent to or suffer the amendment, modification or supplementation 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 (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 Common Elements or any other property of the Offering Plan). Condominium.
(n) No disputes between Borrower shall not consent to and the merger owners of the Condominium with any Units other condominium without Lender’s prior written consent, which may be withheld in its sole and absolute discretion. Lender shall endeavor to respond to each request than the Condominium Units owned by Borrower for Lender’s approval of an amendment to and/or the Condominium Documents within twenty (20) Business Days following Lender’s receipt Associations that could result in a Material Adverse Effect, and, to Borrower's knowledge, no dispute between the owners 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 Units other than the Condominium Units owned by Borrower and submission by Borrower of all information needed by Lender to evaluate said request, then Borrower may deliver a second requestthe Condominium Associations, which request shall state on could result in a Material Adverse Effect, have been submitted to the top board of directors of the first page Condominium Associations or any other Person for resolution 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 accordance with the provisions of the proposed amendment to Condominium Documents.
(o) To Borrower's knowledge, there are no actions, whether voluntary or otherwise, pending against the owners of 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, Units other than the same shall be deemed approved;
(ii) Borrower will pay, or cause to be paid, all assessments for common charges and expenses made against the Mortgaged Property 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 as the same shall become due and payable;
(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 be in force and effect from time to time;
(iv) Borrower, or 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 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 following the expiration of all applicable appeal periods, any material provision of the Condominium Documents is held to 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 (B) 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, cause the Condominium Board of Managers to maintain insurance on the Condominium in accordance with the Condominium Documents and this Agreement; and
(x) For so long as Borrower controls the Condominium Board of Managers, Borrower, in accordance with Borrower’s rights under the Condominium Documents, shall cause the Condominium Board of Managers to enforce the Management Agreementotherwise.
Appears in 1 contract
Condominium. Provided there exists no Event of Default, ------------ Mortgagee shall, on the Company's written request, subordinate the lien of this Mortgage to a declaration of condominium for the Premises and shall execute the appropriate instruments (reasonably satisfactory in all respects to Mortgagee) in recordable form to effect such subordination, upon the satisfaction of the following conditions:
(a) The Declaration (including the Bylaws) Mortgagee shall have received and the Condominium Plans are in compliance approved in all material respects with all Condominium Laws. Borrower shall not modify or amend the Declaration (including documents required for the Bylaws) and/or the Condominium Plans without Lender’s prior written consentcreation of a condominium, which consent documents shall not be unreasonably withheldin proper form for recording or filing, conditioned or delayedas necessary, provided (i) no Event of Default exists, (ii) such amendment or modification complies with all Condominium Laws, and (iii) in the SCA has approved the amendment in writing to the extent it has approval rights thereto under the School Unit Purchase Agreement.appropriate offices;
(b) Borrower agrees that:
(i) Borrower the title policy insuring this Mortgage shall nothave been endorsed to provide affirmative insurance to the effect that the Premises constitute a condominium validly created under the condominium laws of New York, without Lender’s prior written consent, which consent shall and that the release of any condominium unit will not be unreasonably withheld, conditioned affect the lien of this Mortgage except as to the unit so released and further insuring against any loss or delayed provided (x) no Event damage by reason of Default exists and (y) such amendment or modification complies with all Condominium Laws, amend, modify or supplement, or consent to or suffer the amendment, modification or supplementation failure of any of the Condominium Documents (except with respect condominium units to (1) price change amendments be included in the condominium created pursuant 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 condominium laws of the Offering Plan). Borrower shall not consent to the merger of the Condominium with any other condominium without Lender’s prior written consent, which may be withheld in its 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) Business 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 approvedNew York;
(iic) Borrower will payThe Company shall have duly executed and delivered, or cause caused to be paidduly executed and delivered, to Mortgagee a conditional assignment of the Company's rights under the 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 satisfactory to Mortgagee and a conditional termination of the management agreement, if any, covering all assessments or any portion of the condominium in form satisfactory to Mortgagee;
(d) Mortgagee shall have received an opinion from the counsel for common charges the Company to the effect that the condominium documents satisfy all applicable requirements of Governmental Authorities and expenses made against the Mortgaged Property owned by Borrower have been duly executed and, where necessary, duly recorded or filed pursuant to the Condominium Documents as condominium laws of New York, all requirements of any applicable statute, rule or ordinance have been duly satisfied and the condominium has been duly 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 necessary, that the applicable law or regulation governing the same shall become due has been fully complied with and payablethe assignment, resignations and agreements referred to in paragraph (c) of this Section have each been duly authorized, executed and delivered by the respective parties thereto and are enforceable against said parties in accordance with their respective terms;
(iiie) Borrower will comply in all material respects with all of the termsMortgagee shall have received such other documents, covenants and conditions on Borrower’s part to be complied withcertificates, pursuant to the Condominium Documents and any rules and regulations that may be adopted for the Condominium, opinions or assurances as the same shall be in force and effect from time to time;
(iv) Borrower, or 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 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 following the expiration of all applicable appeal periods, any material provision of the Condominium Documents is held to 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 (B) 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, cause the Condominium Board of Managers to maintain insurance on the Condominium in accordance with the Condominium Documents and this Agreement; and
(x) For so long as Borrower controls the Condominium Board of Managers, Borrower, in accordance with Borrower’s rights under the Condominium Documents, shall cause the Condominium Board of Managers to enforce the Management Agreementreasonably request.
Appears in 1 contract
Sources: Mortgage and Security Agreement (V I Technologies Inc)
Condominium. (a) The Declaration (including Borrower has a 12.5492% aggregate percentage interest in the Bylaws) 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 Condominium Plans are Commercial Common Elements as specified in compliance in all material respects with all Condominium Laws. Borrower shall not modify or amend the Declaration (including the Bylaws) and/or the Condominium Plans without Lender’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, provided Documents. The remaining 87.4508% aggregate percentage interest in the General Common Elements of the Condominium is owned as specified on Schedule I. The Borrower Unit and the Units owned by the other parties described in this paragraph (ia) no Event of Default exists, (ii) such amendment or modification complies with all Condominium Laws, and (iii) are the SCA has approved only Units in the amendment in writing to the extent it has approval rights thereto under the School Unit Purchase AgreementCondominium.
(b) Each Condominium Document is in full force and effect and constitutes the binding obligation of Borrower agrees that:and, to Borrower's knowledge, each other party thereto.
(ic) Except as expressly set forth in the Exception Report or which has previously been delivered to Lender, Borrower shall nothas not consented to any amendment or modification (oral or written) of any of the Condominium Documents, without Lender’s prior written consentnor, which consent shall not be unreasonably withheldto Borrower's knowledge, conditioned or delayed provided (x) no Event of Default exists and (y) does any such amendment or modification complies with all Condominium Laws, amend, modify (oral or supplement, or consent to or suffer the amendment, modification or supplementation written) of any of the Condominium Documents exist.
(d) No events exist which, 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 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 party other than Borrower under any of the 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 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 Association or the owners of 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.
(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 (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 not consent to the merger of the Condominium with any other condominium without Lender’s prior written consent, which may be withheld in its 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) Business 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) Borrower will pay, or cause to be paid, all assessments for common charges and expenses made against the Mortgaged Property owned by Borrower pursuant to the Condominium Documents as the same shall become due and payable;
(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 be in force and effect from time to time;
(iv) Borrower, or 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 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 following the expiration of all applicable appeal periods, any material provision of the Condominium Documents is held to 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 (B) 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, cause the Condominium Board of Managers to maintain insurance on the Condominium in accordance with the Condominium Documents and this Agreement; and
(x) For so long as Borrower controls the Condominium Board of Managers, Borrower, in accordance with Borrower’s rights under the Condominium Documents, shall cause the Condominium Board of Managers to enforce the Management Agreementotherwise.
Appears in 1 contract
Sources: Loan Agreement (Alexanders Inc)
Condominium. (a) Bethesda Borrower has a 100% aggregate percentage interest in the common elements of the Condominium. The Declaration (including Condominium Units owned by Bethesda Borrower are the Bylaws) and only Condominium Units in the Condominium Plans are in compliance in all material respects with all Condominium Laws. Borrower shall not modify or amend the Declaration (including the Bylaws) and/or the Condominium Plans without Lender’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, provided (i) no Event of Default exists, (ii) such amendment or modification complies with all Condominium Laws, and (iii) the SCA has approved the amendment in writing to the extent it has approval rights thereto under the School Unit Purchase AgreementCondominium.
(b) Each Condominium Document is in full force and effect and constitutes the binding obligation of Bethesda Borrower agrees that:and, to Bethesda Borrower’s knowledge, each other party thereto.
(ic) Except as expressly set forth in the Exception Report, Bethesda Borrower shall nothas not consented to any amendment or modification (oral or written) of any of the Condominium Documents, without Lendernor, to Bethesda Borrower’s prior written consentknowledge, which consent shall not be unreasonably withheld, conditioned or delayed provided (x) no Event of Default exists and (y) does any such amendment or modification complies with all Condominium Laws, amend, modify (oral or supplement, or consent to or suffer the amendment, modification or supplementation 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 Bethesda 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 Bethesda 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 due and payable by Bethesda Borrower under any of the Condominium Documents to either the Condominium Association, which sums remain unpaid. In addition, except as set forth in the Exception Report, to Bethesda Borrower’s knowledge, there are no sums due and payable by the Condominium Association under any of the Condominium Documents to Bethesda Borrower, which sums remain unpaid.
(f) To Bethesda Borrower’s knowledge, there are no currently outstanding special assessments under the Condominium Documents, and, to Bethesda Borrower’s knowledge, none are presently contemplated.
(g) To Bethesda Borrower’s knowledge, there are no anticipated capital improvements or repairs presently being undertaken to the common elements or any other property of the Condominium and, to Bethesda Borrower’s knowledge, the Condominium Association does not presently contemplate undertaking any such capital improvements or repairs.
(h) As of the date hereof, no board of directors of the Condominium Association has ever been formed, notwithstanding the requirement to form such a board under the Condominium Documents. Accordingly, there are no duly appointed or acting members of the board of directors of the Condominium Association, Bethesda Borrower has not taken, consented to or supported any action to establish or populate such a board, and no conditional resignation letters have been delivered in connection therewith.
(i) To Bethesda 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.
(j) Except as set forth on the Exception Report, the Condominium Association has not entered into any management or maintenance agreements with respect to the common elements or any other property of the Condominium.
(1k) price change amendments No disputes between Bethesda Borrower and the Condominium Association, and, to Bethesda Borrower’s knowledge, no dispute between Bethesda Borrower and the Condominium Association have been submitted 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 board of the Offering Plan). Borrower shall not consent to the merger directors of the Condominium with Association or any other condominium without Lender’s prior written consentPerson for resolution in accordance with the provisions of the Condominium Documents.
(l) The Condominium Association does not have any purchase, which may be withheld in its sole and absolute discretion. Lender shall endeavor to respond to each request by Borrower for Lender’s approval lease or other options or rights of an amendment first refusal with respect to the Condominium Documents within twenty (20) Business 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) Borrower will pay, or cause to be paid, all assessments for common charges and expenses made against the Mortgaged applicable Property owned by Borrower pursuant to the Condominium Documents as the same shall become due and payable;
(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 be in force and effect from time to time;
(iv) Borrower, or 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 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 following the expiration of all applicable appeal periods, any material provision of the Condominium Documents is held to 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 (B) 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, cause the Condominium Board of Managers to maintain insurance on the Condominium in accordance with the Condominium Documents and this Agreement; and
(x) For so long as Borrower controls the Condominium Board of Managers, Borrower, in accordance with Borrower’s rights under the Condominium Documents, shall cause the Condominium Board of Managers to enforce the Management Agreementotherwise.
Appears in 1 contract
Sources: Loan Agreement (Elme Communities)
Condominium. (a) The Declaration Condominium Units owned by Borrower and each “Residential Unit” (including as defined in the BylawsDeclaration) and are the only Condominium Plans are Units in compliance in all material respects with all Condominium Laws. Borrower shall not modify or amend the Declaration (including the Bylaws) and/or the Condominium Plans without Lender’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, provided (i) no Event of Default exists, (ii) such amendment or modification complies with all Condominium Laws, and (iii) the SCA has approved the amendment in writing to the extent it has approval rights thereto under the School Unit Purchase AgreementCondominium.
(b) Each Condominium Document is in full force and effect and constitutes the binding obligation of Borrower agrees that:and, to Borrower’s knowledge, each other party thereto.
(ic) Except as expressly set forth in the Exception Report, Borrower shall nothas not consented to any amendment or modification (oral or written) of any of the Condominium Documents, without Lendernor, to Borrower’s prior written consentknowledge, which consent shall not be unreasonably withheld, conditioned or delayed provided (x) no Event of Default exists and (y) does any such amendment or modification complies with all Condominium Laws, amend, modify (oral or supplement, or consent to or suffer the amendment, modification or supplementation 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 Association, which sums remain unpaid.
(f) To Borrower’s knowledge, there are no currently outstanding special assessments under the Condominium Documents, 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 common elements or any other property of the Condominium and, to Borrower’s knowledge, the Condominium Association does not presently contemplate undertaking any such capital improvements or repairs.
(h) As of the date hereof, the members of the “Executive Board” (as defined in the 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.
(j) Except as set forth on the Exception Report, the Condominium Association has not entered into any management or maintenance agreements with respect to the common elements or any other property of the Condominium.
(1k) price change amendments to the Offering Plan increasing the Schedule A—Purchase Prices (each a “Price Change Amendment”) as provided in Article 16 hereofBorrower has not received written notice of or initiated, and (2) annual update amendments required under Attorney General regulations to extend Borrower’s knowledge there are no, disputes between Borrower and the term of the Offering Plan). Borrower shall not consent to the merger owners of the Condominium with any Units other condominium without Lender’s prior written consent, which may be withheld in its sole and absolute discretion. Lender shall endeavor to respond to each request than the Condominium Unit owned by Borrower for Lender’s approval of an amendment to and/or the Condominium Documents within twenty (20) Business Days following LenderAssociation, and, to Borrower’s receipt knowledge, no dispute between the owners 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 Units other than the Condominium Unit owned by Borrower and submission by Borrower the Condominium Association have been submitted to the board of all information needed by Lender to evaluate said request, then Borrower may deliver a second request, which request shall state on the top directors of the first page Condominium Association or any other Person for resolution 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 accordance with the provisions of the proposed amendment to Condominium Documents.
(l) To Borrower’s knowledge, there are no actions, whether voluntary or otherwise, pending against the owners of 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, Units other than the same shall be deemed approved;
(ii) Borrower will pay, or cause to be paid, all assessments for common charges and expenses made against the Mortgaged Property 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 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 Documents as the same shall become due and payable;
(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 be in force and effect from time to time;
(iv) Borrower, or 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 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 following the expiration of all applicable appeal periods, any material provision of the Condominium Documents is held to 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 (B) 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, cause the Condominium Board of Managers to maintain insurance on the Condominium in accordance with the Condominium Documents and this Agreement; and
(x) For so long as Borrower controls the Condominium Board of Managers, Borrower, in accordance with Borrower’s rights under the Condominium Documents, shall cause the Condominium Board of Managers to enforce the Management Agreementotherwise.
Appears in 1 contract
Sources: Loan Agreement (Aspen REIT, Inc.)
Condominium. (a) The 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 (including the Bylaws) and the Condominium Plans are By-Laws substantially in compliance the form attached as Exhibit E to the Operating Agreement, as the same is to be amended in all material respects accordance with all Condominium Laws. Borrower shall the First Amendment) and (y) Agent’s approval, not modify or amend the Declaration (including the Bylaws) and/or the Condominium Plans without Lender’s prior written consent, which consent shall not to be unreasonably withheld, conditioned or delayedshall 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., provided (i) no Event Exhibits C, D and G of Default existsthe Condominium Declaration), (ii) such amendment or modification complies cause the Condominium Documents to comply with all Condominium Lawsapplicable Legal Requirements, and (iii) cause the SCA has approved Condominium Documents to be filed in the amendment in writing appropriate public offices and the condominium thereunder to be validly created on or prior to the extent it has approval rights thereto under achievement of Core and Shell Completion and (vi) from and after the School Unit Purchase Agreementdate 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 agrees thatnor 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 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 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 Building Loan Mortgage and the Project Loan Mortgage referred to below shall not effect the validity or priority of such Mortgages;
(iii) Borrower shall nothave 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 Building Loan Mortgage and 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 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 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 Lender’s prior written consentlimitation, which consent shall not be unreasonably withhelda title continuation), conditioned certificates, instruments, opinions or delayed provided assurances as Agent may reasonably request; and
(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 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 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 consent to the merger of the Condominium with any other condominium without Lender’s prior written consent, which may be withheld in its 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) Business 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 less than ten (10) Business Days after such second request, then as long as no Event notice of Default any meeting of the condominium board and shall cause Agent or Potential Event of Default exists, the same shall be deemed approved;
(ii) Borrower will pay, or cause any representative thereof to be paid, all assessments for common charges and expenses made against the Mortgaged Property owned permitted to attend any such meeting. Upon reasonable notice by Borrower pursuant to the Condominium Documents as the same shall become due and payable;
(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 be in force and effect from time to time;
(iv) Borrower, or 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 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 following the expiration of all applicable appeal periods, any material provision of the Condominium Documents is held to 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 (B) 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 LawsAgent, Borrower shall control cause Agent or any representative thereof to be permitted to inspect the Condominium books and records of the 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 FC Board of Managers, Borrower will, Managers (as each such term is defined in accordance with Borrower’s rights under the Condominium Documents, cause the Condominium Board of Managers to maintain insurance on the Condominium in accordance with the Condominium Documents and this Agreement; and
(x) For so long as Borrower controls the Condominium Board of Managers, Borrower, in accordance with Borrower’s rights under the Condominium Documents, shall cause the Condominium Board of Managers to enforce the Management Agreement).
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