REA. The Borrower hereby covenants and agrees with Lender with respect to the REA as follows: (a) To the extent of Borrower’s rights to approve or authorize the same, Borrower shall not, without Lender’s prior written consent, amend, modify or supplement, or consent to the amendment, modification or supplementation of the REA except that Lender shall not unreasonably withhold, condition or delay its consent to any amendment or modification which will not have a material adverse effect on the use, value or operation of the Property or Borrower’s ability to pay the Monthly Debt Service Payment Amount including the payment due on the Maturity Date and as to any such amendment, modification or supplementation so consented to by Lender, Lender shall subordinate the provisions of the Loan Documents thereto in form and substance reasonably acceptable to Borrower and Lender; (b) Borrower shall pay all charges and other sums to be paid by Borrower pursuant to the terms of the REA as the same shall become due and payable and prior to the expiration of any applicable grace period therein provided. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any charges required to be paid by Borrower pursuant to the REA, provided that (i) no Event of Default has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of the REA and any other instrument to which Borrower is subject or by which the Property is bound and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances in all material respects; (iii) the Property and no part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) the REA will not be in danger of being terminated; (v) Borrower shall promptly upon final determination thereof pay the amount of any such charges, together with all costs, interest and penalties which may be payable in connection therewith; (vi) such proceeding shall suspend the collection of such charges from Borrower and the Property; and (vii) Borrower shall furnish such security, if and as may be reasonably required in the proceeding to insure the payment of any such charges, together with all interest and penalties thereon; (c) Borrower shall comply in all material respects with all of the terms, covenants and conditions on the Borrower’s part to be complied with pursuant to terms of the REA subject to any applicable grace period therein provided; (d) Borrower shall take all actions as may be necessary from time to time to preserve and maintain the REA; (e) Borrower shall not, without the prior written consent of Lender, as determined in its sole discretion, take (and hereby assigns to Lender any right it may have to take) any action to terminate, surrender, or accept any termination or surrender of, the REA; (f) Borrower shall enforce, in a commercially reasonably manner and subject to the terms of the REA, the obligations to be performed by the parties to the REA (other than Borrower); (g) Borrower shall promptly furnish to Lender any written notice of default or other written communication delivered in connection with the REA by any party to the REA or any third-party to Borrower and/or Manager other than routine correspondence and invoices; (h) Borrower shall not assign (other than to Lender) or encumber its rights under the REA; (i) If Lender, its nominee, designee, successor, or assignee acquires title and/or rights of Borrower under the REA by reason of foreclosure of the Mortgage, deed-in-lieu of foreclosure or otherwise, Borrower agrees to execute and deliver to Lender such documents as Lender and its counsel may reasonably require in order to insure that the provisions of this section will be validly and legally enforceable and effective against Borrower and all parties claiming by, through, under or against Borrower; and (j) If any individuals are appointed or designated by, or on behalf of, Borrower to act as members of the Owner’s Committee (or any successor committee created pursuant to the REA) or to otherwise act in any capacity as officers and/or representatives of such Owner’s Committee, Borrower shall within ten (10) Business Days of such appointment or designation deliver to Lender an Owner’s Committee Proxy and Assignment of Membership in Owner’s Committee substantially in the form delivered to Lender by Borrower on the date hereof with respect to each such individual.
Appears in 1 contract
REA. The Borrower hereby covenants and agrees with Lender with respect to the REA as follows:
(a) To the extent of Borrower’s rights to approve or authorize the same, Borrower shall not, without Lender’s prior written consent, amend, modify or supplement, or consent to the amendment, modification or supplementation of the REA except that Lender shall not unreasonably withhold, condition or delay its consent to any amendment or modification which will not have a material adverse effect on the use, value or operation of the Property or Borrower’s ability to pay the Monthly Debt Service Payment Amount including the payment due on the Maturity Date and as to any such amendment, modification or supplementation so consented to by Lender, Lender shall subordinate the provisions of the Loan Documents thereto in form and substance reasonably acceptable to Borrower and Lender;
(b) Borrower shall pay all charges and other sums to be paid by Borrower pursuant to the terms of the REA as the same shall become due and payable and prior to the expiration of any applicable grace period therein provided. After prior written notice to Lender, Borrower, at its own cost and expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any charges required to be paid by Borrower pursuant to the REA, ; provided that (i) no Default or Event of Default has occurred and remains uncuredoutstanding; (ii) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Security Instrument; (iii) such proceeding shall be permitted under and be conducted in accordance with the provisions of the REA and any other instrument to which Borrower is subject or by which the Property is bound and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances in all material respectsLegal Requirements; (iiiiv) neither the Property and no nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (ivv) the REA will not be in danger of being terminated; (vvi) Borrower shall promptly upon final determination thereof pay the amount of any such charges, together with all costs, interest and penalties which may be payable in connection therewith; (vivii) such proceeding shall suspend the collection of such charges from Borrower and the Property; and (viiviii) Borrower shall furnish such security, if and cash or other security as may be reasonably required in the proceeding or as may be required by Lender to insure ensure the payment of any such charges, together with all interest and penalties thereon;; and (ix) such contest by Borrower is not in violation of the Leases. Lender may pay over, assign or transfer any such security or part thereof to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established or the Property (or any part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, canceled or lost or there shall be any danger of the Lien of the Security Instrument being primed by any related Lien.
(cb) Borrower shall comply in all material respects with perform and observe all of the terms, covenants and conditions on the Borrower’s part required to be complied with performed and observed by Borrower pursuant to terms of the REA subject to any applicable grace period therein provided;REA.
(dc) Borrower shall take all actions as may be necessary from time to time to preserve and maintain the REA;REA in accordance with all applicable Legal Requirements.
(e) Borrower shall not, without the prior written consent of Lender, as determined in its sole discretion, take (and hereby assigns to Lender any right it may have to take) any action to terminate, surrender, or accept any termination or surrender of, the REA;
(fd) Borrower shall enforce, in a commercially reasonably manner and subject to the terms of the REAmanner, the obligations terms, covenants and conditions to be performed and observed by the parties to the REA (other than Borrower);.
(ge) Borrower shall promptly furnish to Lender any written notice of default or other written communication delivered in connection with the REA by any party to the REA or any third-party to Borrower and/or Manager (other than routine correspondence correspondences and invoices;).
(h) Borrower shall not assign (other than to Lender) or encumber its rights under the REA;
(if) If Lender, Lender or its nominee, designee, successor, or assignee acquires title and/or rights of Borrower under the REA by reason of foreclosure of the MortgageSecurity Instrument, deed-in-lieu of foreclosure or otherwise, Lender or such other party shall (i) succeed to all of the rights of and benefits accruing to Borrower under the REA, and (ii) be entitled to exercise all of the rights and benefits accruing to Borrower under the REA. At such time as Lender shall request, Borrower agrees to execute and deliver to Lender such documents as Lender and its counsel may reasonably require in order to insure ensure that the provisions of this section Section 4.1.24(f) will be validly and legally enforceable and effective against Borrower and all parties claiming by, through, under or against Borrower; and
(j) If any individuals are appointed or designated by, or on behalf of, Borrower to act as members of the Owner’s Committee (or any successor committee created pursuant to the REA) or to otherwise act in any capacity as officers and/or representatives of such Owner’s Committee, Borrower shall within ten (10) Business Days of such appointment or designation deliver to Lender an Owner’s Committee Proxy and Assignment of Membership in Owner’s Committee substantially in the form delivered to Lender by Borrower on the date hereof with respect to each such individual.
Appears in 1 contract
REA. The Borrower hereby covenants and agrees with Lender with respect to the REA as follows:
(a) To the extent of Borrower’s rights to approve or authorize the same, Borrower shall not, without Lender’s prior written consent, amend, modify or supplement, or consent to the amendment, modification or supplementation of the REA except that Lender shall not unreasonably withhold, condition or delay its consent to any amendment or modification which will not have a material adverse effect on the use, value or operation of the Property or Borrower’s ability to pay the Monthly Debt Service Payment Amount including the payment due on the Maturity Date and as to any such amendment, modification or supplementation so consented to by Lender, Lender shall subordinate the provisions of the Loan Documents thereto in form and substance reasonably acceptable to Borrower and Lender;
(b) Borrower shall pay all charges and other sums to be paid by Borrower pursuant to the terms of the REA as the same shall become due and payable and prior to the expiration of any applicable grace period therein provided. After prior written notice to Lender, Borrower, at its own cost and expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any charges required to be paid by Borrower pursuant to the REA, ; provided that (i) no Default or Event of Default has occurred and remains uncuredoutstanding; (ii) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Security Instrument; (iii) such proceeding shall be permitted under and be conducted in accordance with the provisions of the REA and any other instrument to which Borrower is subject or by which the Property is bound and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances in all material respectsLegal Requirements; (iiiiv) neither the Property and no nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (ivv) the REA will not be in danger of being terminated; (vvi) Borrower shall promptly upon final determination thereof pay the amount of any such charges, together with all costs, interest and penalties which may be payable in connection therewith; (vivii) such proceeding shall suspend the collection of such charges from Borrower and the Property; and (viiviii) Borrower shall furnish such security, if and cash or other security as may be reasonably required in the proceeding or as may be required by Lender to insure ensure the payment of any such charges, together with all interest and penalties thereon;; and (ix) such contest by Borrower is not in violation of the Leases. Lender may pay over, assign or transfer any such security or part thereof to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established or the Property (or any part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, canceled or lost or there shall be any danger of the Lien of the Security Instrument being primed by any related Lien.
(cb) Borrower shall comply in all material respects with perform and observe (or cause Tenant to perform and observe) all of the terms, covenants and conditions on the Borrower’s part required to be complied with performed and observed by Borrower pursuant to the terms of the REA subject to any applicable grace period therein provided;REA.
(dc) Borrower shall take all actions as may be necessary from time to time to preserve and maintain the REA;REA in accordance with all applicable Legal Requirements.
(e) Borrower shall not, without the prior written consent of Lender, as determined in its sole discretion, take (and hereby assigns to Lender any right it may have to take) any action to terminate, surrender, or accept any termination or surrender of, the REA;
(fd) Borrower shall enforce, in a commercially reasonably manner and subject to the terms of the REAin all material respects, the obligations terms, covenants and conditions to be performed and observed by the parties to the REA (other than Borrower);.
(ge) Borrower shall promptly furnish to Lender any written notice of default or other written communication delivered in connection with the REA by any party to the REA or any third-party to Borrower and/or Manager third‑party (other than routine correspondence correspondences and invoices;).
(h) Borrower shall not assign (other than to Lender) or encumber its rights under the REA;
(if) If Lender, Lender or its nominee, designee, successor, or assignee acquires title and/or rights of Borrower under the REA by reason of foreclosure of the MortgageSecurity Instrument, deed-in-lieu deed‑in‑lieu of foreclosure or otherwise, Lender or such other party shall (i) succeed to all of the rights of and benefits accruing to Borrower under the REA, and (ii) be entitled to exercise all of the rights and benefits accruing to Borrower under the REA. At such time as Lender shall request, Borrower agrees to execute and deliver to Lender such documents as Lender and its counsel may reasonably require in order to insure ensure that the provisions of this section Section 4.1.24(f) will be validly and legally enforceable and effective against Borrower and all parties claiming by, through, under or against Borrower; and
(j) If any individuals are appointed or designated by, or on behalf of, Borrower to act as members of the Owner’s Committee (or any successor committee created pursuant to the REA) or to otherwise act in any capacity as officers and/or representatives of such Owner’s Committee, Borrower shall within ten (10) Business Days of such appointment or designation deliver to Lender an Owner’s Committee Proxy and Assignment of Membership in Owner’s Committee substantially in the form delivered to Lender by Borrower on the date hereof with respect to each such individual.
Appears in 1 contract
REA. The Borrower hereby covenants and agrees with Lender with respect to the REA as follows:
(a) To the extent of Borrower’s rights to approve or authorize the same, Borrower shall not, without Lender’s prior written consent, amend, modify or supplement, or consent to the amendment, modification or supplementation of the REA except that Lender shall not unreasonably withhold, condition or delay its consent to any amendment or modification which will not have a material adverse effect on the use, value or operation of the Property or Borrower’s ability to pay the Monthly Debt Service Payment Amount including the payment due on the Maturity Date and as to any such amendment, modification or supplementation so consented to by Lender, Lender shall subordinate the provisions of the Loan Documents thereto in form and substance reasonably acceptable to Borrower and Lender;
(b) Borrower shall pay all charges and other sums to be paid by Borrower pursuant to the terms of the REA as the same shall become due and payable and prior to the expiration of any applicable grace period therein provided. After prior written notice to Lender, Borrower, at its own cost and expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any charges required to be paid by Borrower pursuant to the REA, ; provided that (i) no Event of Default has occurred and remains uncuredoutstanding; (ii) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Security Instrument; (iii) such proceeding shall be permitted under and be conducted in accordance with the provisions of the REA and any other instrument to which Borrower is subject or by which the Property is bound and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances in all material respectsLegal Requirements; (iiiiv) neither the Property and no nor any part thereof or interest therein will reasonably be in danger of being sold, forfeited, terminated, cancelled or lost; (ivv) the REA will not reasonably be in danger of being terminated; (vvi) Borrower shall promptly upon final determination thereof pay the amount of any such charges, together with all costs, interest and penalties which may be payable in connection therewith; (vivii) such proceeding shall suspend the collection of such charges from Borrower and the Property; and (viiviii) Borrower shall furnish such security, if and cash or other security as may be required in the proceeding or as may be reasonably required in the proceeding by Lender to insure ensure the payment of any such charges, together with all interest and penalties thereon;; and (ix) such contest by Borrower is not in violation of the Leases. Lender may pay over, assign or transfer any such security or part thereof to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established or the Property (or any part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, canceled or lost or there shall be any danger of the Lien of the Security Instrument being primed by any related Lien.
(cb) Borrower shall comply in all material respects with perform and observe all of the terms, covenants and conditions on the Borrower’s part required to be complied with performed and observed by Borrower pursuant to terms of the REA subject to any applicable grace period therein provided;REA.
(dc) Borrower shall take all actions as may be necessary from time to time to preserve and maintain the REA;REA in accordance with all applicable Legal Requirements.
(e) Borrower shall not, without the prior written consent of Lender, as determined in its sole discretion, take (and hereby assigns to Lender any right it may have to take) any action to terminate, surrender, or accept any termination or surrender of, the REA;
(fd) Borrower shall enforce, in a commercially reasonably manner and subject to the terms of the REAreasonable manner, the obligations terms, covenants and conditions to be performed and observed by the parties to the REA (other than Borrower);.
(ge) Borrower shall promptly furnish to Lender any written notice of default or other written communication delivered by or received by Borrower in connection with the REA by any party to the REA or any third-party to Borrower and/or Manager (other than routine correspondence correspondences and invoices;).
(h) Borrower shall not assign (other than to Lender) or encumber its rights under the REA;
(if) If Lender, Lender or its nominee, designee, successor, or assignee acquires title and/or rights of Borrower under the REA by reason of foreclosure of the MortgageSecurity Instrument, deed-in-lieu of foreclosure or otherwise, Lender or such other party shall (i) succeed to all of the rights of and benefits accruing to Borrower under the REA, and (ii) be entitled to exercise all of the rights and benefits accruing to Borrower under the REA. At such time as Lender shall request, Borrower agrees to execute and deliver to Lender such documents as Lender and its counsel may reasonably require in order to insure ensure that the provisions of this section Section 4.1.24(f) will be validly and legally enforceable and effective against Borrower and all parties claiming by, through, under or against Borrower; and
(j) If any individuals are appointed or designated by, or on behalf of, Borrower to act as members of the Owner’s Committee (or any successor committee created pursuant to the REA) or to otherwise act in any capacity as officers and/or representatives of such Owner’s Committee, Borrower shall within ten (10) Business Days of such appointment or designation deliver to Lender an Owner’s Committee Proxy and Assignment of Membership in Owner’s Committee substantially in the form delivered to Lender by Borrower on the date hereof with respect to each such individual.
Appears in 1 contract
Sources: Loan Agreement (American Realty Capital - Retail Centers of America, Inc.)
REA. The Borrower hereby covenants and agrees with Lender with respect is a party (by succession) to the REA as follows:and, to the best of Borrower’s knowledge, the REA is in full force and effect and has not been amended or modified and Borrower’s interest therein has not been assigned pursuant to any assignment which survives the Closing Date except the assignment to Lender pursuant to the Loan Documents.
(a) To the extent of Borrower’s rights to approve or authorize the same, Borrower shall not, without Lender’s prior written consent, amend, modify or supplement, or consent to the amendment, modification or supplementation A true correct and complete copy of the REA except that Lender shall not unreasonably withhold, condition or delay its consent to any amendment or modification which will not have a material adverse effect on the use, value or operation of the Property or Borrower’s ability to pay the Monthly Debt Service Payment Amount including the payment due on the Maturity Date and is attached hereto as to any such amendment, modification or supplementation so consented to by Lender, Lender shall subordinate the provisions of the Loan Documents thereto in form and substance reasonably acceptable to Borrower and LenderSchedule IV;
(b) Borrower shall pay all charges and other sums to be paid by Borrower pursuant to the terms of has not received written notice that the REA as the same shall become due and payable and prior to the expiration of any applicable grace period therein provided. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted is not in good faith and with due diligence, the amount or validity or application compliance in whole or in part of any charges required to be paid by Borrower pursuant to the REA, provided that (i) no Event of Default has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of the REA and any other instrument to which Borrower is subject or by which the Property is bound and shall not constitute a default thereunder and such proceeding shall be conducted in accordance all material respects with all applicable statuteslocal, laws state and ordinances in all material respects; (iii) the Property federal laws, rules and no part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) the REA will not be in danger of being terminated; (v) Borrower shall promptly upon final determination thereof pay the amount of any such charges, together with all costs, interest and penalties which may be payable in connection therewith; (vi) such proceeding shall suspend the collection of such charges from Borrower and the Property; and (vii) Borrower shall furnish such security, if and as may be reasonably required in the proceeding to insure the payment of any such charges, together with all interest and penalties thereonregulations;
(c) Borrower shall comply has not received written notice that it is in all material respects with all of the terms, covenants and conditions on the Borrower’s part to be complied with pursuant to terms of default under the REA subject or that any other party to any applicable grace period therein providedthe REA is in material default thereunder;
(d) Borrower shall take all actions as may be necessary from time has no knowledge of any written notice of termination or default given with respect to time to preserve and maintain the REAREA that remains outstanding;
(e) Borrower shall nothas not performed any work pursuant to the REA, without the prior written consent cost of Lender, as determined which Borrower is or will be entitled to charge in its sole discretion, take (and hereby assigns to Lender any right it may have to take) any action to terminate, surrender, whole or accept any termination or surrender of, in part under the provisions of the REA;
(f) Borrower shall enforcehas not received written notice of any set-offs, claims, counterclaims or defenses being asserted in writing for the enforcement of the obligations under the REA, which either individually or in the aggregate would have a commercially reasonably manner and subject to material adverse effect on the terms enforcement of the REA, the obligations to be performed by the parties to the REA (other than Borrower);
(g) Borrower shall promptly furnish to Lender any written notice there are no liens currently capable of default or other written communication delivered in connection with being asserted for amounts due under the provisions of the REA by any party which, if unpaid, may be asserted as a lien prior to the REA or any third-party to Borrower and/or Manager other than routine correspondence and invoiceslien of the Mortgage;
(h) neither Borrower shall nor any other party to the REA has requested in writing that a matter that is not assign (other than yet resolved be submitted to Lender) or encumber its rights arbitration under the REA;
(i) If Lender, its nominee, designee, successor, or assignee acquires title and/or rights of all common charges and other sums due from Borrower under the REA by reason have been paid to the extent they are payable to the date hereof;
(j) there are no charges currently due and payable under the REA to Borrower or any other party to the REA (except in the ordinary course of foreclosure of the Mortgage, deed-in-lieu of foreclosure or otherwise, Borrower agrees to execute and deliver to Lender such documents as Lender and its counsel may reasonably require in order to insure that the provisions of this section will be validly and legally enforceable and effective against Borrower and all parties claiming by, through, under or against Borrowerbusiness); and
(jk) If any individuals are appointed Borrower will provide Lender with a copy of all written notices given or designated byreceived by it under the REA at the address listed in this Agreement, or on behalf of, Borrower any other address which Lender from time to act as members of the Owner’s Committee (or any successor committee created pursuant time may provide in writing to the REA) or to otherwise act in any capacity as officers and/or representatives of such Owner’s Committee, Borrower shall within ten (10) Business Days of such appointment or designation deliver to Lender an Owner’s Committee Proxy and Assignment of Membership in Owner’s Committee substantially in the form delivered to Lender by Borrower on the date hereof with respect to each such individualit.
Appears in 1 contract
REA. The Borrower hereby covenants REA constitutes the only reciprocal easement agreements or operating agreements encumbering the Property. A true and agrees with Lender with respect to the REA as follows:
(a) To the extent of Borrower’s rights to approve or authorize the same, Borrower shall not, without Lender’s prior written consent, amend, modify or supplement, or consent to the amendment, modification or supplementation complete copy of the REA has heretofore been furnished to Purchaser, together with each written modification thereof and supplement thereto. The REA constitutes the entire agreement between Seller and each party thereto, and Seller has not made any oral promises or agreements amending or modifying the same.
5.1.13.1 To Seller's knowledge, the REA is valid and in full force and effect, and no Rents or other payments or deposits are held by Seller or Seller's agent, except that Lender shall not unreasonably withhold, condition or delay its consent to any amendment or modification which will not have a material adverse effect on the use, value or operation Rents prepaid for the current month. As of the Property Closing Date, no Rents due to Seller under, or Borrower’s ability to pay the Monthly Debt Service Payment Amount including the payment due on the Maturity Date and as to any such amendment, modification or supplementation so consented to by Lender, Lender shall subordinate the provisions of the Loan Documents thereto in form and substance reasonably acceptable to Borrower and Lender;
(b) Borrower shall pay all charges and other sums to be paid by Borrower pursuant to the terms of the REA as the same shall become due and payable and prior to the expiration of any applicable grace period therein provided. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any charges required to be paid by Borrower pursuant to the REA, provided that (i) no Event of Default has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of the REA and any other instrument to which Borrower is subject or by which the Property is bound and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutesinterest of Seller in, laws and ordinances in all material respects; (iii) the Property and no part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) the REA will not be assigned to any party other than Purchaser, or otherwise pledged or encumbered in danger of being terminated; (v) Borrower shall promptly upon final determination thereof pay the amount of any such charges, together with all costs, interest and penalties which may be payable in connection therewith; (vi) such proceeding shall suspend the collection of such charges from Borrower and the Property; and (vii) Borrower shall furnish such security, if and way.
5.1.13.2 Except as may be reasonably required in the proceeding to insure the payment of any such charges, together with all interest and penalties thereon;
(c) Borrower shall comply in all material respects with all of the terms, covenants and conditions set forth on the Borrower’s part to be complied with pursuant to terms Disclosure Schedule, none of the REA subject to any applicable grace period therein provided;
(d) Borrower shall take all actions as may be necessary from time to time to preserve and maintain the REA;
(e) Borrower shall not, without the prior written consent of Lender, as determined in its sole discretion, take (and hereby assigns to Lender any right it may have to take) any action to terminate, surrender, or accept any termination or surrender of, the REA;
(f) Borrower shall enforce, in a commercially reasonably manner and subject to the terms of the REA, the obligations to be performed by the parties to the REA (other than Borrower);
(g) Borrower shall promptly furnish to Lender has made any written notice claim which has been received by Seller nor, to Seller's knowledge, has any other claim, whether or not in writing (a) that Seller has defaulted in performing any of default or other written communication delivered in connection its obligations under any of the REAs which has not heretofore been cured, (b) that any condition exists which with the passage of time or giving of notice, or both, would constitute any such default, (c) that such party is entitled to any reduction in, refund of, or counterclaim or offset against, or is otherwise disputing, any charges paid, payable or to become payable by such party, (d) that such party is entitled to cancel its REA by or to be relieved of its operating covenants thereunder, or (e) that there is a violation of any party of the covenants, conditions or restrictions contained in such REA.
5.1.13.3 With the exception of delinquencies in the payments which are set forth on the Disclosure Schedule, to Seller's knowledge, no material default exists under the REA or any third-party to Borrower and/or Manager other than routine correspondence and invoices;
(h) Borrower shall on the part of the parties thereto. Seller is not assign (other than to Lender) or encumber its rights in default under the REA;
(i) If Lender, its nominee, designee, successor, or assignee acquires title and/or rights of Borrower under the REA by reason of foreclosure of the Mortgage, deed-in-lieu of foreclosure or otherwise, Borrower agrees to execute and deliver to Lender such documents as Lender and its counsel may reasonably require in order to insure that the provisions of this section will be validly and legally enforceable and effective against Borrower and all parties claiming by, through, under or against Borrower; and
(j) If any individuals are appointed or designated by, or on behalf of, Borrower to act as members of the Owner’s Committee (or any successor committee created pursuant to the REA) or to otherwise act in any capacity as officers and/or representatives of such Owner’s Committee, Borrower shall within ten (10) Business Days of such appointment or designation deliver to Lender an Owner’s Committee Proxy and Assignment of Membership in Owner’s Committee substantially in the form delivered to Lender by Borrower on the date hereof with respect to each such individual.
Appears in 1 contract
Sources: Agreement of Purchase and Sale (General Growth Properties Inc)
REA. The Borrower hereby covenants and agrees with Lender with respect to the REA as follows:
(a) To the extent of Borrower’s rights to approve or authorize the same, Borrower shall not, without Lender’s prior written consent, amend, modify or supplement, or consent to the amendment, modification or supplementation of the REA except that Lender shall not unreasonably withhold, condition or delay its consent to any amendment or modification which will not have a material adverse effect on the use, value or operation of the Property or Borrower’s ability to pay the Monthly Debt Service Payment Amount including the payment due on the Maturity Date and as to any such amendment, modification or supplementation so consented to by Lender, Lender shall subordinate the provisions of the Loan Documents thereto in form and substance reasonably acceptable to Borrower and Lender;
(b) Borrower shall pay all charges and other sums to be paid by Borrower pursuant to the terms of the REA as the same shall become due and payable and prior to the expiration of any applicable grace period therein provided. After prior written notice to Lender, Borrower, at its own cost and expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any charges required to be paid by Borrower pursuant to the REA, ; provided that (i) no Default or Event of Default has occurred and remains uncuredoutstanding; (ii) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Security Instrument; (iii) such proceeding shall be permitted under and be conducted in accordance with the provisions of the REA and any other instrument to which Borrower is subject or by which the Property is bound and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances in all material respectsLegal Requirements; (iiiiv) neither the Property and no nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (ivv) the REA will not be in danger of being terminated; (vvi) Borrower shall promptly upon final determination thereof pay the amount of any such charges, together with all costs, interest and penalties which may be payable in connection therewith; (vivii) such proceeding shall suspend the collection of such charges from Borrower and the Property; and (viiviii) Borrower shall furnish such security, if and cash or other security as may be reasonably required in the proceeding or as may be required by Lender to insure ensure the payment of any such charges, together with all interest and penalties thereon;; and (ix) such contest by Borrower is not in violation of the Leases. Lender may pay over, assign or transfer any such security or part thereof to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established or the Property (or any part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, canceled or lost or there shall be any danger of the Lien of the Security Instrument being primed by any related Lien.
(cb) Borrower shall comply in all material respects with perform and observe (or cause Tenant to perform and observe) all of the terms, covenants and conditions on the Borrower’s part required to be complied with performed and observed by Borrower pursuant to the terms of the REA subject to any applicable grace period therein provided;REA.
(dc) Borrower shall take all actions as may be necessary from time to time to preserve and maintain the REA;REA in accordance with all applicable Legal Requirements.
(e) Borrower shall not, without the prior written consent of Lender, as determined in its sole discretion, take (and hereby assigns to Lender any right it may have to take) any action to terminate, surrender, or accept any termination or surrender of, the REA;
(fd) Borrower shall enforce, in a commercially reasonably manner and subject to the terms of the REAin all material respects, the obligations terms, covenants and conditions to be performed and observed by the parties to the REA (other than Borrower);.
(ge) Borrower shall promptly furnish to Lender any written notice of default or other written communication delivered in connection with the REA by any party to the REA or any third-party to Borrower and/or Manager (other than routine correspondence correspondences and invoices;).
(h) Borrower shall not assign (other than to Lender) or encumber its rights under the REA;
(if) If Lender, Lender or its nominee, designee, successor, or assignee acquires title and/or rights of Borrower under the REA by reason of foreclosure of the MortgageSecurity Instrument, deed-in-lieu of foreclosure or otherwise, Lender or such other party shall (i) succeed to all of the rights of and benefits accruing to Borrower under the REA, and (ii) be entitled to exercise all of the rights and benefits accruing to Borrower under the REA. At such time as Lender shall request, Borrower agrees to execute and deliver to Lender such documents as Lender and its counsel may reasonably require in order to insure ensure that the provisions of this section Section 4.1.24(f) will be validly and legally enforceable and effective against Borrower and all parties claiming by, through, under or against Borrower; and.
(jg) If any individuals are appointed or designated byNotwithstanding anything to the contrary contained in this Agreement, or on behalf ofit is acknowledged and agreed that Lender’s consent shall not be required in connection with the REA Amendment, Borrower to act as members provided that each of the Owner’s Committee following conditions is satisfied:
(or any successor committee created pursuant i) No Event of Default has occurred and is continuing;
(ii) The REA Amendment is in the form previously approved by Lender in writing prior to the REAClosing Date, a copy of which is attached hereto as Schedule 4.1.24;
(iii) or to otherwise act in any capacity as officers and/or representatives of such Owner’s Committee, Borrower shall provide to Lender a copy of the fully executed and recorded REA Amendment within ten (10) Business Days of the recording of such appointment or designation REA Amendment in the appropriate county records of San Diego County, California;
(iv) Borrower shall, at its sole cost and expense, (x) have executed, acknowledged and delivered to Lender an amendment to the applicable Loan Documents, which amendment shall be reasonably acceptable to Lender in all respects, updating the legal description attached thereto to incorporate such REA Amendment (collectively, the “Loan Documents Amendment”) and cause each such Loan Documents Amendment to be recorded in the appropriate county records of San Diego County, California, and (y) deliver to Lender an Owner’s Committee Proxy endorsement to the Title Insurance Policy insuring (A) against the invalidity or unenforceability of the lien of the Security Instrument as a result of any Loan Documents Amendment, (B) that the Lien of the Security Instrument continues to be a first priority lien on the Property, subject to no exceptions other than Permitted Encumbrances and Assignment such REA Amendment, and (C) amending the legal description of Membership in Owner’s Committee substantially the insured estate in the form delivered Title Insurance Policy to include such REA Amendment; and
(v) All reasonable out-of-pocket costs and expenses incurred by Lender in connection with any matter arising under this Section 4.1.24(g) shall be paid by Borrower on the date hereof with respect to each such individualBorrower.
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REA. The Borrower hereby covenants and agrees with Lender with respect to shall, at Agent's request, provided that the REA as follows:
(a) To the extent of Borrower’s rights to approve or authorize the same, Borrower shall not, without Lender’s prior written consent, amend, modify or supplement, or consent to the amendment, modification or supplementation of the REA except that Lender Condominium Conversion shall not unreasonably withholdhave already occurred, condition execute, deliver and record a Declaration of Rights and Reciprocal Easements (as the same may be amended, restated, supplemented or delay its consent otherwise modified from time to any amendment or modification which will not have a material adverse effect on time in accordance with the useterms hereof, value or operation of the Property or Borrower’s ability to pay the Monthly Debt Service Payment Amount including the payment due on the Maturity Date and as to any such amendment"REA"), modification or supplementation so consented to by Lender, Lender shall subordinate the provisions of the Loan Documents thereto in form and substance reasonably acceptable satisfactory to Borrower and Lender;
Agent, within thirty (b30) Borrower shall pay all charges and other sums to be paid by Borrower pursuant to the terms of the REA as the same shall become due and payable and prior to the expiration of any applicable grace period therein provided. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any charges required to be paid by Borrower pursuant to the REA, provided that (i) no days after an Event of Default has shall have occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted relating to a monetary Default or any other material Default including, without limitation, failure of Borrower to proceed with the construction of the Improvements in accordance with the provisions terms of this Agreement. The REA shall provide for, inter alia, (i) cross easements between the REA two parcels comprising the Property, (ii) allocation of responsibilities for construction, maintenance, support and any other instrument operations, including, without limitation, utilities, for such parcels and the improvements to which Borrower is subject or by which be located thereon, as between such parcels and the Property is bound and shall not constitute a default thereunder and respective owner of each such proceeding shall be conducted in accordance with all applicable statutesparcel, laws and ordinances in all material respects; (iii) the Property respective rights and no part thereof or interest therein will be in danger obligations of being soldthe owners of such parcels to build and restore the Improvements, forfeited, terminated, cancelled or lost; (iv) the REA will not be in danger respective rights and obligations of being terminated; (v) Borrower shall promptly upon final determination thereof pay the amount of any such charges, together with all costs, interest and penalties which may be payable in connection therewith; (vi) such proceeding shall suspend the collection owners of such charges from Borrower and the Property; and (vii) Borrower shall furnish such security, if and as may be reasonably required parcels in the proceeding to insure the payment event of any such chargesa Casualty or Condemnation, together with all interest and penalties thereon;
(c) Borrower shall comply in all material respects with all of the terms, covenants and conditions on the Borrower’s part to be complied with pursuant to terms of the REA subject to any applicable grace period therein provided;
(d) Borrower shall take all actions as may be necessary from time to time to preserve and maintain the REA;
(e) Borrower shall notincluding, without the prior written consent of Lender, as determined in its sole discretion, take (and hereby assigns to Lender any right it may have to take) any action to terminate, surrender, or accept any termination or surrender of, the REA;
(f) Borrower shall enforce, in a commercially reasonably manner and subject to the terms of the REAlimitation, the obligations to be performed by restore and the parties rights to any Net Proceeds or Award, and (v) the rights and remedies of an owner to perform the obligations of the other owner if the other owner fails to do so, including the rights to lien the other owner's property. In the event that the REA shall not have been duly executed and delivered and properly recorded in the City Register's Office, New York County, prior to the REA commencement of a foreclosure proceeding against the Property or prior to the filing of any bankruptcy proceeding (other than Borrower);
voluntary or involuntary) against either Commercial Owner or Residential Owner, Borrower agrees that it will not adopt a foreclosure or bankruptcy strategy or interpose defenses (gincluding, without limitation, any defenses that the assets of Borrower must be marshaled) which would oppose or contravene or otherwise interfere with the foreclosure of both parcels comprising the Property simultaneously in a single sale as though both such parcels were but a single parcel owned by one owner. Borrower shall promptly furnish to Lender any written notice of default or other written communication delivered acknowledges in connection with the REA by any party foregoing that Agent and Lenders (A) have entered into this Agreement and the other Loan Agreements and Lenders have agreed to make the REA or any third-party Loan in reliance on their ability to Borrower and/or Manager other than routine correspondence and invoices;
treat the Property for collateral purposes as though it were a single parcel, (hB) Borrower shall would not assign (other than to Lender) or encumber its rights under the REA;
(i) If Lender, its nominee, designee, successor, or assignee acquires title and/or rights of Borrower under the REA by reason of foreclosure have made a loan against either parcel independently of the Mortgageother and (C) are permitting the continued subdivision of the Property as two parcels with separate ownership in each Borrower merely to accommodate Borrower's tax and organizational needs. In furtherance of the foregoing, deed-in-lieu of foreclosure or otherwiseand in consideration for Lenders agreeing to make the Loan, each Borrower agrees to execute include a provision in its Organizational Documents that if either Borrower is involved in a bankruptcy proceeding (voluntary or involuntary), at the request of Agent, the other Borrower will file a voluntary petition in bankruptcy and deliver to Lender such documents as Lender and its counsel may reasonably require support Agent in order to insure that the provisions of this section will be validly and legally enforceable and effective against Borrower and all parties claiming by, through, under or against Borrower; and
(j) If any individuals are appointed or designated by, or seeking on behalf ofof Lenders or will itself seek on its own behalf procedural consolidation of both proceedings, Borrower to act as members and such provision may not be amended or modified without the consent of the Owner’s Committee Agent (or any successor committee created pursuant to the REA) or to otherwise act in any capacity as officers and/or representatives of such Owner’s Committee, Borrower shall within ten (10) Business Days of such appointment or designation deliver to Lender an Owner’s Committee Proxy and Assignment of Membership in Owner’s Committee substantially in the form delivered to Lender by Borrower on the date hereof with respect to each such individualwill expressly so provide).
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