Condominium Covenants. (a) With respect to each Condominium, Borrower covenants as follows: (i) it will not, without Lender’s prior written consent, vote to amend, modify, supplement or terminate, or consent to (1) the termination of any of the Condominium Documents or (2) the amendment, modification or supplementation of any of the Condominium Documents, in each case, in any material respect which would cause a Material Adverse Effect on the applicable Individual Property; (ii) it will pay (or cause to be paid) all Condominium Charges and expenses actually assessed against, and payable by, those Units then owned or leased by it pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, other than assessments or Condominium Charges that are being contested in good faith pursuant to the applicable Condominium Documents and this Agreement; (iii) it will comply in all material respects with all of the terms, covenants and conditions on its part to be complied with, pursuant to the applicable Condominium Documents and any applicable Condominium Laws and rules and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to time, provided that the failure of the Condominium Board to be inactive shall not be a breach of this clause (iii) as long as such inactivity does not give rise to a Material Adverse Effect on such Individual Property; (iv) it will take all commercially reasonable actions as may be necessary from time to time to preserve and maintain the Condominium in accordance with the applicable Condominium Law; it will not, without the prior written consent of Lender, 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 Law, or cause a partition of the Condominium; (v) it will not, without Lender’s prior written consent, (A) vote to permit any of the terms or provisions of the Condominium Documents to be materially modified, supplemented or amended, including, without limitation, changing the boundaries of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights of Borrower to appoint members to the Condominium Board or permit the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Borrower has under the Condominium Documents; (vi) for so long as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium and the Unit which Borrower owns, leases or otherwise occupies, (b) to the extent in Borrower’s control, promptly repair, replace or rebuild any part of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall not in such event vote to not repair, restore or rebuild such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased by the applicable Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; and (A) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation of such association and appointment of board members, Borrower shall obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default. (b) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 7 hereof and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof to the extent permitted by applicable law and the Condominium Documents. (c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full. (d) Borrower will use commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them. (e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect on such Individual Continental Property or (v) any material relocation of the boundaries of the applicable Individual Continental Property. (f) During the continuance of an Event of Default, Lender shall have the right, to the extent permitted under the Condominium Documents, but not the obligation, to cure any default by Borrower under the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Individual Property. (g) Upon the occurrence and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all of the rights and privileges of Borrower. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium Charges. (h) During the continuance of an Event of Default, Lender shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions of the Condominium Documents. (i) Borrower shall not implement any Condominium regime at any Property without the prior written consent of Lender.
Appears in 3 contracts
Samples: Loan Agreement (Retail Value Inc.), Loan Agreement (Retail Value Inc.), Loan Agreement (DDR Corp)
Condominium Covenants. (a) With respect Borrower shall fail to each Condominium, Borrower covenants as follows:
(i) it will not, without Lender’s prior written consent, vote to amend, modify, supplement or terminate, or consent to (1) the termination of pay any of the Condominium Charges to be paid by Borrower pursuant to the Condominium Documents when the same are due and payable (taking into account any applicable grace or (2) the amendment, modification or supplementation of any of cure periods granted to Borrower pursuant to the Condominium Documents), except to the extent Administrative Agent is obligated to disburse funds from the Condominium Charges Reserve Account to pay for such insurance under this Agreement, Administrative Agent has sufficient funds in each case, in any material respect which would cause a Material Adverse Effect on the applicable Individual Property;
Condominium Charges Reserve Account to make such payment and Administrative Agent fails to make such payment; or (ii) it will pay (or cause to be paid) all Condominium Charges and expenses actually assessed against, and payable by, those Units then owned or leased by it pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, other than assessments or Condominium Charges that are being contested in good faith pursuant to the applicable Condominium Documents and this Agreement;
(iii) it will comply in all material respects with all of the terms, covenants and conditions on its part to be complied with, pursuant to the applicable Condominium Documents and any applicable Condominium Laws and rules and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to time, provided that the failure of the Condominium Board to be inactive shall not be a breach of this clause (iii) as long as such inactivity does not give rise to a Material Adverse Effect on such Individual Property;
(iv) it will take all commercially reasonable actions as may be necessary from time to time to preserve and maintain the Condominium fails in accordance with the applicable terms of the Condominium Law; it will notDocuments (A) following at least five (5) days written notice to Borrower (or upon written notice to Borrower, if any such insurance shall not be in full force and effect or shall be due to expire within one (1) Business Day), to keep the Common Elements and/or the Project, as applicable, insured against the hazards specified in the Condominium Documents in the amounts and pursuant to policies in the form specified therein or (B) to pay, as and when the same becomes due and payable, any charge or encumbrance which results in a Lien against the Project and such Lien shall not be discharged, dismissed or bonded by the Condominium Board or Borrower within forty-five (45) days of such imposition (provided that such failure to cause such Lien to be discharged, dismissed or bonded shall not result in an Event of Default if Borrower or the Condominium Board shall be contesting such Lien in accordance with Section 9.13), or (iii) without the prior written consent of LenderAdministrative Agent, take (and hereby assigns Borrower fails to Lender comply with any right it may have to take) any action to terminate the Condominium, withdraw terms of the Condominium from Documents and the Condominium LawAct beyond any applicable notice and grace periods and such failure results in a Material Adverse Effect with respect to the Project, or cause a partition of (iv) the Condominium;
(v) it will not, Condominium is terminated without LenderAdministrative Agent’s prior written consent, (A) vote to permit any of the terms or provisions of the Condominium Documents to be materially modified, supplemented or amended, including, without limitation, changing the boundaries of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights of Borrower to appoint members to the Condominium Board or permit the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Borrower has under the Condominium Documents;
(vi) for so long as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium and the Unit which Borrower owns, leases or otherwise occupies, (b) to the extent in Borrower’s control, promptly repair, replace or rebuild any part of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall not in such event vote to not repair, restore or rebuild such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased by the applicable Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; and
(A) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation of such association and appointment of board members, Borrower shall obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default.
(b) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 7 hereof and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof to the extent permitted by applicable law and the Condominium Documents.
(c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect on such Individual Continental Property or (v) any material relocation of the boundaries of the applicable Individual Continental Property.
(f) During the continuance of an Event of Default, Lender shall have the right, to the extent permitted under the Condominium Documents, but not the obligation, to cure any default by Borrower under the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Individual Property.
(g) Upon the occurrence and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all of the rights and privileges of Borrower. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium Charges.
(h) During the continuance of an Event of Default, Lender shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions of the Condominium Documents.
(i) Borrower shall not implement any Condominium regime at any Property without the prior written consent of Lender.
Appears in 2 contracts
Samples: Loan Agreement (Alexanders Inc), Loan Agreement (Alexanders Inc)
Condominium Covenants. (a) With respect to each the Condominium, Borrower hereby covenants as follows:
(ia) it will not, without Lender’s prior written consent, vote Borrower shall cause Mortgage Borrower to amend, modify, supplement or terminate, or consent to (1) the termination of any of the Condominium Documents or (2) the amendment, modification or supplementation of any of the Condominium Documents, in each case, in any material respect which would cause a Material Adverse Effect on the applicable Individual Property;
(ii) it will promptly pay (or cause to be paid) all Condominium Common Charges and expenses actually assessed against, and payable by, those Units then owned or leased by it imposed pursuant to the applicable Condominium Documents when the same become due and payable with respect to the Units owned by Mortgage Borrower. The amount of Common Charges payable by Mortgage Borrower on an annual basis is $0.00. Borrower shall cause Mortgage Borrower to deliver to Lender, promptly upon Lender’s request, evidence satisfactory to Lender that the Common Charges have been so paid or are not then delinquent with respect to the Units owned by Mortgage Borrower. Borrower shall (or Ground Lease, if applicableshall cause Mortgage Borrower to) prior to delinquency, other than assessments or Condominium Charges that are being contested in good faith pursuant promptly notify Lender of (I) any adjustments made to the applicable amount of Common Charges due under the Condominium Documents and this Agreement;(II) the imposition of any additional Common Charges under the Condominium Documents.
(iiib) it will comply Borrower acknowledges and agrees that the Units owned by Mortgage Borrower are within the definition of “Property” under this Agreement and, as such, Borrower shall cause Mortgage Borrower to cause the same to be insured in all material respects accordance with all Article 7 of this Agreement and Article 7 of the terms, covenants and conditions on its part Mortgage Loan Agreement. Any Net Proceeds of such insurance or any Net Proceeds otherwise obtained with respect to be complied with, pursuant any condemnation of the Individual Property subject to the applicable Condominium Documents and any applicable Condominium Laws and rules and regulations that may be adopted for the Condominium as the same shall be in force held and effect from time to time, provided that the failure of the Condominium Board to be inactive shall not be a breach of this clause (iii) as long as such inactivity does not give rise to a Material Adverse Effect on such Individual Property;
(iv) it will take all commercially reasonable actions as may be necessary from time to time to preserve and maintain the Condominium applied by Lender in accordance with the applicable Condominium Law; it will not, without the prior written consent terms and conditions of Lender, 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 Law, or cause a partition of the Condominium;
(v) it will not, without Lender’s prior written consent, (A) vote to permit any of the terms or provisions of the Condominium Documents to be materially modified, supplemented or amended, including, without limitation, changing the boundaries of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights of Borrower to appoint members to the Condominium Board or permit the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Borrower has under the Condominium Documents;
(vi) for so long as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium this Agreement and the Unit which Borrower owns, leases or otherwise occupies, (b) to the extent in Borrower’s control, promptly repair, replace or rebuild any part of Mortgage Loan Documents and the Condominium and the Units to shall be insured in accordance with the extent benefitting provisions of Article 7 of this Agreement and Article 7 of the Unit owned, leased or otherwise used by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Mortgage Loan Agreement. Borrower shall not in such event vote cause Mortgage Borrower to not repair, restore cause any insurance proceeds or rebuild such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action condemnation awards with respect to the Condominium and/or the Unit owned or leased Units that are to be held and disbursed by the applicable Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; and
(A) With respect Board pursuant to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member terms of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower Documents to be held by an Eligible Institution or an insurance trustee approved by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation of such association and appointment of board members, Borrower shall obtain resignation letters from each voting member of the related Condominium Board appointed insurance proceeds or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters condemnation awards shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default.
(b) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 7 hereof and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof to the extent permitted by applicable law and the Condominium Documents.
(c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect on such Individual Continental Property or (v) any material relocation of the boundaries of the applicable Individual Continental Property.
(f) During the continuance of an Event of Default, Lender shall have the right, to the extent permitted under the Condominium Documents, but not the obligation, to cure any default by Borrower under the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Individual Property.
(g) Upon the occurrence and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all of the rights and privileges of Borrower. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium Charges.
(h) During the continuance of an Event of Default, Lender shall have the right to participate in any arbitration proceeding instituted applied in accordance with the provisions terms and conditions of the Condominium Documentsthis Agreement.
(i) Borrower shall not implement any Condominium regime at any Property without the prior written consent of Lender.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Morgans Hotel Group Co.), Mezzanine Loan Agreement (Morgans Hotel Group Co.)
Condominium Covenants. Notwithstanding anything to the contrary herein:
(a) With Borrower will not in any respect to each Condominiummodify, Borrower covenants as follows:
(i) it will not, without Lender’s prior written consent, vote to amend, modifyrestate, supplement waive, release or terminateotherwise alter any provision of, or consent to (1) the termination of any of terminate or cancel, the Condominium Documents without the prior written approval of Lender.
(b) Borrower will not change or (2) alter the amendment, modification or supplementation of any presently anticipated use of the Condominium DocumentsProject from retail space, in each case, in any material respect which would cause a Material Adverse Effect on the applicable Individual Property;
(ii) it will pay (or cause to be paid) all Condominium Charges nor market and expenses actually assessed against, and payable by, those Units then owned or leased by it pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, other than assessments or Condominium Charges that are being contested in good faith pursuant to the applicable Condominium Documents and this Agreement;
(iii) it will comply in all material respects with all of the terms, covenants and conditions on its part to be complied with, pursuant to the applicable Condominium Documents and any applicable Condominium Laws and rules and regulations that may be adopted for sell the Condominium as the same shall be in force and effect from time to timeUnits, provided that the failure of the Condominium Board to be inactive shall not be a breach of this clause (iii) as long as such inactivity does not give rise to a Material Adverse Effect on such Individual Property;
(iv) it will take all commercially reasonable actions as may be necessary from time to time to preserve and maintain the Condominium in accordance with the applicable Condominium Law; it will notor any portion thereof, without the prior written consent of Lender.
(c) Borrower shall not, take without Xxxxxx’s prior written consent (and Borrower hereby assigns to Lender any right it may have have) to take(i) take any action to terminate activate or establish the Condominiumcondominium regime, withdraw form or establish the Association; or (ii) assign (other than to Lender) or encumber (other than in favor of Lender as security for the Debt) any of its rights under the Condominium from the Condominium Law, Declaration or cause a partition of the Condominium;related documents.
(vd) it will Borrower shall not, without LenderXxxxxx’s prior written consent, exercise any right it may have to vote (Ai) for any additions or improvements to the common elements of the condominium regime; (ii) for any borrowing on behalf of the condominium regime; or (iii) in connection with the repair or restoration of the Improvements or the expenditure of any insurance proceeds or condemnation awards for any such repair or restoration other than in accordance with the terms of this Agreement.
(e) Borrower shall not, except with the prior written consent of Lender (i) institute any action or proceeding for partition of the Project; or (ii) vote for or consent to permit any modification of, amendment to or relaxation in the enforcement of any provision of the terms Condominium Declaration which affects, alters or impairs the lien of the applicable Mortgage or the security therefor, or which materially increases the obligations or diminishes the rights of Lender.
(f) In each and every case in which, under the provisions of the Condominium Documents to be materially modifiedDeclaration, supplemented the consent or amended, including, without limitation, changing the boundaries vote of any Unit, changing any ownership percentage interest or vote allocated to a the Unit or changing any rights of Borrower to appoint members to Owners (as defined in the Condominium Board or permit the Condominium to be terminatedDeclaration) is required, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Borrower has under the Condominium Documents;
(vi) for so long as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium and the Unit which Borrower owns, leases or otherwise occupies, (b) to the extent in Borrower’s control, promptly repair, replace or rebuild any part of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall not vote or give such consent so as to impair the lien of the applicable Mortgage or the security therefor without, in such event vote to not repaireach and every case, restore or rebuild such Condominium without the prior written consent of Lender.
(g) In the event any assessments become due and payable under the Condominium Declaration, Borrower shall promptly pay, as the same become due and payable, all such assessments as required by the Condominium Declaration and the Rules and Regulations (c) complete and pay for, within a reasonable time, any structure at any time as defined in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (dDeclaration) to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased by the applicable Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument or any other Loan Documentresolutions adopted pursuant thereto, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; and
(A) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by promptly upon demand provide to Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of receipts for all such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominium, in payments. In the event that Borrower fails to make such payments as the Seabrook Condominium becomes active same become due and board members are appointedpayable, Borrower Lender may from time to time at its option, but without any obligation to do so and without notice to or demand upon Borrower, make such payments, and the same shall provide be added to Lender prompt notice thereof the Debt, and in connection with Borrower’s activation of such association and appointment of board membersshall bear interest until repaid at the Default Rate; provided, Borrower shall obtain resignation letters from each voting member however, that the failure of the related Borrower to make any such payment (which is not cured within any applicable notice and cure period under the Condominium Board appointed Declaration) or selected by Borrower and any officers to exhibit such receipts within five (5) Business Days of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and mayLender’s demand shall, at Lender’s option, be submitted at any time after Lender’s acceleration the election of the Loan following Lender constitute an Event of Default.
(bh) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in In the event of a casualty or a condemnation which are inconsistent with the provisions failure of Article 7 hereof and (ii) expressly agrees Borrower to perform any of its obligations relating to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof to the extent permitted by applicable law and the Condominium Documents.
(c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required Project under the Condominium Documents): Declaration within a period of ten (i10) any material and adverse change days (unless the Condominium Declaration requires sooner performance) after notice thereof, or in the nature and amount case of any insurance covering all such default which cannot with due diligence be cured or a part of remedied within such period, if Borrower fails to proceed promptly after such notice to cure or remedy the Condominium and the disposition of same with due diligence, then in any proceeds thereofsuch case, Lender may from time to time at its option, but only without any obligation to do so, cure or remedy any such default of Borrower (Borrower hereby authorizing Lender to enter upon the Project as may be necessary for such purposes), and all sums expended by Lender for such purposes, including reasonable counsel fees, shall be added to the extent Debt; provided, however, that the failure of Borrower to keep or perform any of such obligations within the foregoing violates applicable period after notice, or, in the Loan Documents; (ii) the manner case in which any condemnation such cannot be kept or threat of condemnation of all or a part of performed within the applicable Individual Property shall be defended or settled period, provided Borrower has commenced to cure such default and is diligently pursuing same to completion, such additional time as is needed to so complete, shall, at the disposition election of any award or settlement in connection therewithLender, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect on such Individual Continental Property or (v) any material relocation of the boundaries of the applicable Individual Continental Property.
(f) During the continuance of constitute an Event of Default, Lender shall have the right, to the extent permitted under the Condominium Documents, but not the obligation, to cure any default by Borrower under the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Individual Property.
(g) Upon the occurrence and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all of the rights and privileges of Borrower. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium Charges.
(h) During the continuance of an Event of Default, Lender shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions of the Condominium Documents.
(i) Borrower shall not implement any Condominium regime at any Property without the prior written consent of Lender.
Appears in 2 contracts
Samples: Term Loan Agreement (Wheeler Real Estate Investment Trust, Inc.), Term Loan Agreement (Cedar Realty Trust, Inc.)
Condominium Covenants. (a) With respect to each Condominium, Borrower covenants as follows:
(i) it will not, without Lender’s prior written consent, vote to amend, modify, supplement or terminate, or consent to (1) the termination of any of the Condominium Documents or (2) the amendment, modification or supplementation of any of the Condominium Documents, in each case, in any material respect which would cause a Material Adverse Effect on the applicable Individual Property;
(ii) it will pay (or cause to be paid) all Condominium Charges and expenses actually assessed against, and payable by, those Units then owned or leased by it pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, other than assessments or Condominium Charges that are being contested in good faith pursuant to the applicable Condominium Documents and this Agreement;
(iii) it will shall comply in all material respects with all of the terms, covenants and conditions on its part to be complied with, pursuant to of the applicable Condominium Documents and any applicable Condominium Laws and rules and regulations that may be adopted for the Condominium Condominium, as the same shall be in force and effect from time to timetime to the extent applicable to Borrower.
(b) Borrower shall pay, provided or cause to be paid, all assessments for common charges and expenses made against the Condominium unit owned by Borrower pursuant to the Condominium Documents as the same shall become due and payable (subject to Borrower’s rights to contest the same in a manner that the failure would not be reasonably expected to result in a Material Adverse Effect).
(c) Borrower shall not, without Lender’s prior consent, not to be unreasonably withheld, conditioned or delayed, modify, amend or supplement, or consent to or suffer any modification, amendment, or supplementation of any of the Condominium Board Documents (to be inactive the extent within Borrower’s control) or change, alter or amend, or waive or release any of its material rights and remedies under any of the Condominium Documents.
(d) Borrower shall not be a breach of this clause (iii) as long as such inactivity does not give rise to a Material Adverse Effect on such Individual Property;
(iv) it will take all commercially reasonable actions as may be necessary from time to time to preserve and maintain the Condominium in accordance with the applicable Condominium Law; it will not, without the prior written consent of Lender, take (and hereby assigns to Lender any right it may have to take) any action to terminate the Condominium, withdraw the Condominium from any state, local or federal laws, rules and regulations which affect the Condominium Lawestablishment and maintenance of condominiums in the applicable state, or cause a partition of the Condominium;.
(ve) it will Borrower shall not assign (other than to Lender) or encumber (other than in favor of Lender as security for the Debt) any of its rights under the Condominium Documents.
(f) Borrower shall not, without Lender’s prior written consent, exercise any right it may have to vote for, (Ai) vote any additions or improvements to permit any the common elements of the terms Condominium, except as such additions or provisions of the Condominium Documents improvements are permitted pursuant to be materially modified, supplemented or amended, including, without limitation, changing the boundaries of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights of Borrower to appoint members to the Condominium Board or permit the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Borrower has under the Condominium Documents;
(vi) for so long as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium and the Unit which Borrower owns, leases or otherwise occupies, (b) to the extent in Borrower’s control, promptly repair, replace or rebuild any part of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall not in such event vote to not repair, restore or rebuild such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased by the applicable Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, (ii) any borrowing on behalf of the related Security Instrument Condominium, or (iii) the expenditure of any insurance proceeds or condemnation awards for the repair or restoration of the Improvements other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover than in accordance with the costs provisions of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; andthis Agreement.
(Ag) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to To the extent any voting member (including any officers or directors) of the related any applicable Condominium Board board is appointed or selected by Borrower after the Closing Date, it Borrower shall obtain resignation letters in substantially the same form as the resignations attached hereto resignation letters delivered to Lender as Exhibit H of the Closing Date from each voting member of such Condominium Board board appointed by or selected by Borrower and any officers of the Silver Spring Square such Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation of such association and appointment of board members, Borrower shall obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrowerescrow, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default.
(b) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 7 hereof and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof to the extent permitted by applicable law and the Condominium Documents.
(c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect on such Individual Continental Property or (v) any material relocation of the boundaries of the applicable Individual Continental Property.
(f) During the continuance of an Event of Default, Lender shall have the right, to the extent permitted under the Condominium Documents, but not the obligation, to cure any default by Borrower under the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Individual Property.
(g) Upon the occurrence and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all of the rights and privileges of Borrower. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium Charges.
(h) During the continuance of an Event of Default, Lender shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions of the Condominium Documents.
(i) Borrower shall not implement any Condominium regime at any Property without the prior written consent of Lender.
Appears in 1 contract
Condominium Covenants. (a) With respect Borrower shall pay all Assessments as and when due and payable. Borrower shall deliver to each CondominiumLender, within five (5) after Lender’s written request therefor, evidence satisfactory to Lender that the Assessments have been timely paid. Borrower covenants as follows:shall immediately notify Lender if the Assessments are increased, or if special or extraordinary Assessments are imposed.
(b) Borrower shall observe and perform, and shall cause the members of the Condominium Board appointed by Borrower to observe and perform, the provisions of the Condominium Documents. Borrower (i) it will notshall not take, without Lender’s prior written consent, or vote to amendtake, modify, supplement or terminateand shall restrict any member of the Condominium Board appointed by Borrower from taking, or consent voting to (1) take, any action with respect to the termination Condominium and/or the Units that would contravene, breach or violate the provisions of any of the Condominium Documents or (2) the amendment, modification or supplementation of any of the Condominium Loan Documents, in each case, in any material respect which would cause a Material Adverse Effect on the applicable Individual Property;
and (ii) it will pay (or cause to be paid) all Condominium Charges and expenses actually assessed againstshall, and payable by, those Units then owned or leased by it pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, other than assessments or Condominium Charges that are being contested in good faith pursuant to the applicable Condominium Documents and this Agreement;
(iii) it will comply in all material respects with all of the terms, covenants and conditions on its part to be complied with, pursuant to the applicable Condominium Documents and any applicable Condominium Laws and rules and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to time, provided that the failure cause each member of the Condominium Board to be inactive shall not be a breach of this clause (iii) as long as such inactivity does not give rise to a Material Adverse Effect on such Individual Property;
(iv) it will take all commercially reasonable actions as may be necessary from time to time to preserve and maintain the Condominium in accordance with the applicable Condominium Law; it will not, without the prior written consent of Lender, 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 Law, or cause a partition of the Condominium;
(v) it will not, without Lender’s prior written consentthat was appointed by Borrower to, (A) vote to permit any of in a manner consistent with the terms or provisions of the Condominium Documents Loan Documents, (B) intentionally omitted, (C) obtain Lender’s prior written consent prior to be materially modified, supplemented or amended, including, without limitation, changing the boundaries of any Unit, changing any ownership percentage interest or vote allocated voting to a Unit or changing any rights of Borrower to appoint members to permit the Condominium Board or permit the Owner’s Association to establish any significant working capital or similar reserves or undertaking any significant capital expenditures, (D) vote to maintain the Condominium in good condition and repair, to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Borrower has under the Condominium Documents;
(vi) for so long as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium and the Unit which Borrower ownsCondominium, leases or otherwise occupies, (b) to the extent in Borrower’s control, promptly repair, replace or rebuild any part of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Borrower which may be damaged or destroyed by any fire or other casualty or which may be affected by any eminent domain or condemnation proceeding and Borrower shall not in such event vote to not repair, restore or rebuild such Condominium without the prior written consent of Lender, (c) promptly complete and pay for, within a reasonable time, for any structure at any time in the process of construction or repair on at the Condominium. If any part of the Condominium is damaged or destroyed by fire or other casualty or is affected by any eminent domain or condemnation proceeding, unless otherwise approved by Lender, Borrower shall, and shall cause each member of the Units Condominium Board appointed by Borrower to, vote in favor of repairing, restoring or rebuilding the Condominium.
(c) Borrower shall not object to allowing (and shall vote to allow) and shall cause each member of the Condominium Board appointed by Borrower to vote to allow, Lender to examine the books, records and receipts of the Condominium upon five (5) days prior written notice of such examination.
(d) Within five (5) days after Borrower’s receipt thereof, Borrower shall deliver to Lender: (i) a copy of the most recent annual budget for the Condominium received by Borrower, and (ii) a copy of the most recent annual budget for the Condominium, and (iii) a copy of each and every notice of default by Borrower received from the Owner’s Association or any member of the Condominium Board. Furthermore, Borrower shall provide prior written notice to Lender of all material matters requiring the vote or consent of the unit owners of the Condominium within five (5) days after obtaining knowledge thereof. Each such delivery shall be accompanied by an Officer’s Certificate which certifies that the information delivered is true, correct and complete.
(e) To the extent required that any approval rights, consent rights or other rights or privileges are granted to be completed or paid for by Borrower under a mortgagee of record in the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased by the applicable Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument or any other Loan Documentmortgagee protection provisions are contained in the Condominium Documents, (e) refrain from establishing significant working capital reserves then such approval rights, consent rights or other similar reserves rights, protections or privileges shall be deemed to undertake significant capital expenditures be required by this Agreement and are incorporated herein by this reference. Furthermore, Borrower shall not, and shall not permit any member of the Condominium Board appointed by Borrower to, exercise any material approval, consent or voting rights to which it is entitled under the Condominium Documents without obtaining Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; and
(A) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation of such association and appointment of board members, Borrower shall obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default.
(b) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 7 hereof and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof to the extent permitted by applicable law and the Condominium Documents.
(c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect on such Individual Continental Property or (v) any material relocation of the boundaries of the applicable Individual Continental Property.
(f) During Unless otherwise approved by Lender, Borrower shall not, and shall not permit any member of the continuance Condominium Board appointed by Borrower to, vote in favor of an Event the Condominium or the Owner’s Association incurring any Indebtedness.
(g) Borrower shall attend each duly called meeting or special meeting of Default, Lender the Owner’s Association.
(h) Lender’s prior written consent shall have the right, be required for any alterations to the extent permitted under Improvements if Borrower is required to obtain the consent or approval of the Owner’s Association or the Condominium Board for any such alterations pursuant to the Condominium Documents. The foregoing is in addition to, but and not in limitation of, the obligationprovisions set forth in Section 5.1.21 of this Agreement.
(i) In the event that material improvements to the common areas and facilities of the Condominium (as opposed to ordinary repairs and replacements of existing improvements in the ordinary course) are proposed: (i) Borrower shall notify Lender of such proposed material improvements within five (5) days after obtaining knowledge thereof; (ii) Lender may, at its option, exercise all rights, options and voting rights accruing to cure any default by Borrower under the Condominium Documents and applicable Legal Requirements relating to such proposed improvements to the extent such default could reasonably be expected to have a Material Adverse Effect on common areas and facilities (the Individual Property.
(g“Improvement Rights”) Upon in the occurrence place and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all of the rights and privileges stead of Borrower. ; (iii) in order to effectuate the foregoing, Borrower hereby irrevocably appoints Lender as its Borrower’s attorney-in-factfact to so act with respect to said rights, which appointment as attorney-in-fact is hereby coupled with an interest; (iv) written notice from Lender of its election to exercise the Improvement Rights in each event to the Owner’s Association and to Borrower is to be deemed conclusive evidence as to Lender’s right to exercise the Improvement Rights; and (v) Borrower shall pay all amounts required by the Condominium Documents with respect to such proposed improvements as and when due. Lender may, without any obligation or liability, pay such amounts to Borrower or directly to the Owner’s Association for such proposed improvements, and the same shall be secured by this Security Instrument and the other Loan Documents. Any such advances shall bear interest at the Default Rate until repaid to Lender and Borrower shall execute, acknowledge, deliver and record, at Borrower’s expense, any documents as Lender may require evidencing such advances and securing repayment thereof to Lender by Borrower.
(j) With respect to any matters concerning the: (i) election of members of the Condominium Board, (ii) approval of any budget or amended or supplementary budget for the Condominium, or (iii) the selection of a manager or execution of a management contract, Lender may elect to vote in place and stead of Borrower with respect to all such matters. In order to effectuate the foregoing, Borrower hereby irrevocably appoints Lender as Borrower’s proxy and attorney-in-fact to so act with respect to all of said rights so long right to vote, which appointment as such Event of Default continues hereunder or under any other Loan Documentsattorney-in-fact is hereby coupled with an interest. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for voting, and in no circumstance shall Lender be liable or responsible for the payment of any Condominium ChargesAssessments.
(h) During the continuance of an Event of Default, Lender shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions of the Condominium Documents.
(i) Borrower shall not implement any Condominium regime at any Property without the prior written consent of Lender.
Appears in 1 contract
Condominium Covenants. (a) With respect to each CondominiumRegarding the contemplated development, ownership, and operation of the Xxxx Project, and without limiting the generality of the other covenants and agreements of the Borrower hereunder and/or under any other Loan Document, Xxxx Borrower hereby covenants and agrees with the Administrative Agent and the Lenders as follows:follows (herein, singly and collectively, the “Condominium Covenants”):
(ib) it On or before December 31, 2010, Xxxx Borrower shall submit the Xxxx Project, together with all of the Xxxx Improvements constructed or to be constructed thereon, to the provisions of the Condominium Law and will notsatisfy all of the requirements thereof and of any other applicable Laws or restriction necessary to create the Condominium as a valid condominium regime in respect of the Xxxx Project and Xxxx Improvements; provided, however that Xxxx Borrower will not record or file the Xxxx Condominium Declaration with the appropriate registry of deeds without LenderAdministrative Agent’s prior written consent, vote to amend, modify, supplement or terminate, or consent to (1) the termination of any of the Condominium Documents or (2) the amendment, modification or supplementation of any of the Condominium Documents, and subordination as provided for in each case, in any material respect which would cause a Material Adverse Effect on the applicable Individual PropertySection 7.38;
(iic) it will pay (After the recording of the Xxxx Condominium Declaration and construction of the Xxxx Improvements, the condominium association which shall be created by the Xxxx Condominium Declaration shall have furnished to Administrative Agent, at no cost or cause expense to be paid) all Administrative Agent, the insurance required by the Xxxx Condominium Charges and expenses actually assessed againstDeclaration, which shall name Administrative Agent, said condominium association, and payable byXxxx Borrower, those Units then owned or leased by it pursuant as their respective interests may appear, as the insureds, as permitted in the Xxxx Condominium Declaration, in such amounts as Administrative Agent may from time to time reasonably require and covering all of the Xxxx Improvements; said fire insurance shall at all times comply with the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, other than assessments or Condominium Charges that are being contested conditions contained in good faith pursuant to the applicable Condominium Documents Xxxx Mortgage and elsewhere in this Agreement;
(iiid) it will comply in all material respects with all of the terms, covenants and conditions on its part Xxxx Borrower shall duly perform or cause to be complied withduly performed all obligations of developers or sponsors, pursuant to or declarant under the applicable Xxxx Condominium Documents Declaration, and any applicable Condominium Laws and rules and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to time, provided that the failure of the Condominium Board do or cause to be inactive shall not be a breach of this clause (iii) as long as such inactivity does not give rise done all things necessary to a Material Adverse Effect on such Individual Property;
(iv) it will take all commercially reasonable actions as may be necessary from time to time to preserve operate and maintain the Condominium for the purpose for which it was intended;
(e) Xxxx Borrower shall fully and faithfully keep, pay, and perform each and every covenant, agreement, and provision in accordance with the Xxxx Condominium Declaration, the Condominium Law, and all other applicable Laws on the part of Xxxx Borrower to be kept and performed;
(f) Xxxx Borrower shall promptly pay as the same become due and payable the share of Xxxx Borrower as owner of all applicable Condominium Law; it will Units, and subject to the provisions hereof or the other Loan Documents, of common expenses and all assessments as required by the Xxxx Condominium Declaration, including reserves therefor, and to promptly upon demand exhibit to Administrative Agent receipts for all such payments;
(g) Xxxx Borrower shall promptly deliver to Administrative Agent a true and correct copy of each and every notice of default received by Xxxx Borrower with respect to any obligation of Xxxx Borrower under the provisions of said Condominium Law and/or the Xxxx Condominium Declaration;
(h) Xxxx Borrower shall not, without except with the prior written consent of LenderAdministrative Agent in each instance, take (and hereby assigns 1) vote for, consent to, or enter into any material modification of, material amendment to, or relaxation of the enforcement of, any provision of the Xxxx Condominium Declaration, (2) vote to Lender any right it may have change the percentage interest in the common areas of the Condominium Units or to take) any action to terminate the Condominium, withdraw remove the Condominium from the provisions of the said Condominium Law, (3) vote to allot compensation to members of the association managing board or cause officers who are Affiliates or affiliated with Xxxx Borrower, (4) in the event of damage to or destruction of the condominium buildings or a partition partial taking by condemnation, vote not to restore the condominium property, and/or (5) vote to alter or improve the common areas for a proposed cost in excess of five (5%) percent of the last preceding annual budget approved by the association managing board;
(i) Xxxx Borrower shall not, in each and every case in which, under the provisions of the Xxxx Condominium Declaration or the Condominium Law the consent or vote of fifty percent (50%) or more of the owners of Condominium Units is required, vote or give such consent without, in each and every case, the prior written consent of Administrative Agent;
(j) Within ten (10) days after issuance by the association managing board, Xxxx Borrower shall furnish to Administrative Agent a copy of (i) all assessments issued by the association managing board against the Xxxx Project, and (ii) the annual budget issued by the association managing board;
(k) Xxxx Borrower shall defend, indemnify and save harmless Administrative Agent, and all those claiming by, through or under Administrative Agent (including, without limitation, the Lenders), from and against any loss, damage, cost, expense or other liability of any nature whatsoever arising out of any obligations of the developer and declarant of the Condominium;
(v) it will not, without Lender’s prior written consent, (A) vote to permit any of the terms or provisions owners of the Condominium Documents to be materially modified, supplemented Units or amendedotherwise, including, without limitation, changing liability arising under Condominium Law; and
(l) In the boundaries event of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights of Borrower to appoint members casualty loss to the said Condominium Board or permit to any Condominium Unit therein, Xxxx Borrower shall promptly notify the Condominium Administrative Agent of such loss. Administrative Agent may elect to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that vote in place and stead of Xxxx Borrower has with respect to insurance under the terms of the Xxxx Condominium Documents;
(vi) for so long Declaration and in order to effectuate the foregoing, Xxxx Borrower hereby irrevocably appoints the Administrative Agent as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium and the Unit which Borrower owns, leases or otherwise occupies, (b) to the extent in Xxxx Borrower’s controlagent to so act with respect to said right to vote, promptly repair, replace or rebuild any part said agency being coupled with an interest. Xxxx Borrower agrees that written notice from the Administrative Agent of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall not such election in such event received by Xxxx Borrower not less than twenty-four (24) hours before such vote is to not repair, restore or rebuild be deemed conclusive evidence as to such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on right to vote. Xxxx Borrower will make all advances as required by the Condominium Declaration for repair and restoration due to inadequacy of insurance, provided that it has been voted to repair and restore the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (d) except to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased such inadequacy is caused by the applicable Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; and
(A) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member delivery of the related Condominium Board appointed or selected by Borrower and any officers proceeds of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation of such association and appointment of board members, Borrower shall obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default.
(b) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 7 hereof and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof to the extent permitted by applicable law and the Condominium Documents.
(c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect on such Individual Continental Property or (v) any material relocation of the boundaries of the applicable Individual Continental Property.
(f) During the continuance of an Event of Default, Lender shall have the right, to the extent permitted under the Condominium Documents, but not the obligation, to cure any default by Borrower under the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Individual Property.
(g) Upon the occurrence and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all of the rights and privileges of Borrower. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium Charges.
(h) During the continuance of an Event of Default, Lender shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions of the Condominium Documents.
(i) Borrower shall not implement any Condominium regime at any Property without the prior written consent of Lender.such
Appears in 1 contract
Samples: Construction Loan and Security Agreement (Campus Crest Communities, Inc.)
Condominium Covenants. (a) With respect Borrower shall and shall cause Property Owner to each Condominium, Borrower covenants as follows:
(i) it will notdiligently and timely pay, without Lender’s prior written consent, vote to amend, modify, supplement or terminate, or consent to (1) the termination of any of the Condominium Documents or (2) the amendment, modification or supplementation of any of the Condominium Documents, in each case, in any material respect which would cause a Material Adverse Effect on the applicable Individual Property;
(ii) it will pay (or cause to be paid) all Condominium Charges perform and expenses actually assessed against, and payable by, those Units then owned or leased by it pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, other than assessments or Condominium Charges that are being contested in good faith pursuant to the applicable Condominium Documents and this Agreement;
(iii) it will comply in all material respects with observe all of the terms, covenants and conditions on its part required to be complied withperformed by the owner of the Subject Condominium Units under the Condominium Documents, (ii) promptly notify Lender of the giving of any written notice to Property Owner or Borrower of any default by Property Owner or Borrower in the performance or observance of any of the terms, covenants or conditions on the part of Property Owner or Borrower, to be performed or observed under any of the Condominium Documents and deliver to Lender a true copy of each such notice and (iii) promptly pay when due, all taxes, governmental impositions, common charges, assessments, special assessments and all other fees or charges imposed upon Property Owner or Borrower pursuant to the applicable Condominium Documents and on any applicable of the Subject Condominium Laws and rules and regulations that may be adopted for the Condominium as the same Units.
(b) Borrower shall be in force and effect (i) promptly notify Lender of all matters of which Borrower, from time to time, provided has received notice which may indicate that a material violation or default by Property Owner or Borrower under or variance from the Condominium Documents exists or is about to occur, and Borrower shall do all such acts or undertake all such steps and institute all such proceedings as shall be necessary to cure or avert such violation, default or variance; (ii) promptly deliver to Lender a true and complete copy of each and every notice of a default received by Borrower with respect to any obligations of Property Owner or Borrower under the provisions of the Condominium Documents, as well as a true and complete copy of all notes, notices or other communications received from any governmental authority respecting the failure of Property Owner, Borrower, the Condominium Board or any offering of Condominium Units to be inactive shall not be a breach of this clause comply with any applicable building, zoning securities or other federal, state or local laws, ordinances, regulations, order and requirements; (iii) as long as such inactivity does not give rise to a Material Adverse Effect on such Individual Property;
cast the votes of the Subject Condominium Units or permit any members of the Board of Managers or the NYTC Board of Managers designated, appointed or otherwise controlled by Property Owner or Borrower to vote (ivx) it will take all commercially reasonable actions as may be necessary from time for additions, alterations or improvements to time to preserve and maintain the Condominium Common Elements costing in accordance with excess of $200,000 in the applicable Condominium Law; it will not, aggregate in any calendar year without the prior written consent of LenderLender (which consent shall not be unreasonably withheld, take conditioned or delayed) or (and hereby assigns y) to approve the borrowing of a sum of money in excess of $1,000,000 for any one item by the Board of Managers or the NYTC Board of Managers without the prior written consent of Lender any right it may have to take(which consent shall not be unreasonably withheld, conditioned or delayed), or (x) any action to terminate the Condominium, withdraw the Condominium from the Condominium Law, or cause a partition of the Condominium;
(v) it will not, without Lender’s prior written consent, (A) vote to permit any of the terms or provisions of the Condominium Documents to be materially modified, supplemented or amended, including, without limitation, changing the boundaries of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights of Borrower to appoint members to the Condominium Board or permit the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Borrower has under the Condominium Documents;
(vi) for so long as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium and the Unit which Borrower owns, leases or otherwise occupies, (b) to the extent in Borrower’s control, promptly repair, replace or rebuild any part of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall not in such event vote to not repair, restore or rebuild such Condominium without the prior written consent of Lender; and (iv) except as otherwise provided in the Condominium Documents or this Agreement, deliver to Lender all proceeds of hazard insurance distributed to Borrower in lieu of restoration or repair following the loss to the Property or any condemnation awards.
(c) complete and pay forBorrower shall not, within a reasonable timewithout prior written consent of Lender, vote or permit Property Owner to vote to terminate, modify, change, supplement, alter or amend or permit or allow the members of the Board of Managers or the NYTC Board of Managers appointed by Property Owner or Borrower, if any, to terminate, modify, change, supplement, alter or amend any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, either orally or in writing, and Borrower hereby assigns to Lender, as further security for the payment of the Debt and for the performance and observance of the terms, covenants and conditions of the Mortgage and this Agreement, all of the right, privileges and prerogatives of Borrower, to terminate, modify, change, supplement, alter or amend any of the Condominium Documents or to consent to the foregoing.
(d) If Property Owner or Borrower shall default in the performance or observance of any term, covenant or condition of any of the Condominium Documents on the part of the owner of the Subject Condominium Units to be performed or observed, then, without limiting the generality of the other provisions of the Mortgage and this Agreement and without waiving or releasing Borrower from any of its obligations hereunder, Lender shall have the right (following five (5) Business Days notice to Borrower, or such shorter time as may be required to avoid an event of default under the Condominium Documents), but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the material terms, covenants an conditions of the Condominium Documents on the part of the owner of the Subject Condominium Units, to be performed or observed to be promptly performed or observed on behalf of the owner of the Subject Condominium Units, to the extent end that it has the power rights of the owner of the Subject Condominium Units in, to and authority to do so, refrain from taking under any action with respect to of the Condominium and/or Documents shall be kept unimpaired as a result thereof and free from default, even though the Unit owned existence of such event of default or leased the nature thereof be questioned or denied by Borrower or by any party on behalf of Borrower. If Lender shall make any payment or perform any act to take action in accordance with the preceding sentence, Lender will notify Borrower of the making of such payment, or the taking of such action. Lender may pay and expend such sums of money as Lender reasonably deems necessary for any such purpose and upon doing so shall be subrogated to any and all rights of the applicable parties under the Condominium Documents. Borrower hereby agrees to pay to Lender within five (5) days after demand, all such sums so paid and expended by Lender, together with interest thereon from the say of such payment at the Default Rate. All sums so paid and expended by Lender and the interest thereon shall be secured by the applicable Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, legal operation and effect of the related Security Instrument or any other Loan Document, Pledge.
(e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures Borrower shall not, without Lender’s prior written consent, provided that Lender’s waive or release or consent to the waiver or release of any rights of the owner of the Subject Condominium Units under any of the Condominium Documents or permit or allow the members of the Board of Managers or the NYTC Board of Managers appointed by Property Owner or Borrower to do any of the foregoing.
(f) In each and every case in which, under the provisions of the Condominium Documents, the consent or the vote of the owners of the Condominium Units of the Condominium or the Board of Managers or the NYTC Board of Managers is required (other than with respect to ministerial matters which do not adversely affect the rights or obligations of Borrower or Lender or emergency situations), Borrower shall not vote nor give such consent, permit or allow the members on the Board of Managers or the NYTC Board of Managers appointed by Property Owner or Borrower to vote or give such consent, without, in each and every case, the prior written consent of Lender which consent shall not be required for any working capital reserves unreasonably withheld or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; and
(A) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto delayed as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board long as there is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation of such association and appointment of board members, Borrower shall obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an no uncured Event of Default.
(bg) The provisions of Article 7 hereof shall apply Borrower will not remove or replace or consent to the entirety removal or replacement of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, members of the Board of Managers or the NYTC Board of Managers appointed by Property Owner or Borrower, for and on behalf if any, without the prior consent of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, Lender (such consent not to be unreasonably withheld).
(i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 7 hereof and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof to the extent permitted by applicable law and the Condominium Documents.
(c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium Except as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly otherwise required under the Condominium Documents): (i) any material and adverse change , so long as the Condominium Board maintains with an insurance carrier having the ratings set forth in Section 7.1.2, a master or blanket policy or policies as specified in the nature Condominium Documents covering the Property and amount of any insurance covering all or a part the Common Elements of the Condominium (collectively, the “Board’s Policies”) which is reasonably satisfactory to Lender and which provides insurance coverage in the disposition amounts, for the periods and against the risks, losses and liabilities and damages that Lender reasonably requires and which otherwise comply with the provisions of any proceeds thereofSection 7.1.2, but as described herein naming Property Owner and Borrower as insured and Lender as lender, Borrower’s obligation to maintain the insurance required under this Agreement shall be deemed satisfied. To the extent not covered by the Board’s Policies, Borrower will keep the Property insured against loss or damage by fire and such other hazards as Lender shall from time to time reasonably require in amounts approved by the Lender as described herein and commercial general liability insurance against claims for bodily injury, death or property damage occurring upon, in or about the Property as Lender shall from time to time reasonably require in amounts approved by Lender as described above. Borrower shall give prompt notice to Lender of termination or interruption in coverage of the master or blanket policy maintained by the Condominium and in that event shall provide replacement coverage as required under Article VII for the benefit of Borrower. Subject only to the extent any rights of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from under the provisions of the Condominium Law; (iv) Documents, Lender shall be entitled to all insurance proceeds payable on account of such damage or destruction allocable to the creation ofProperty and Borrower hereby irrevocably assigns to Lender all rights of Borrower to any such proceeds, award or payment and irrevocably authorizes and empowers Lender, at its option, in the name of Borrower or otherwise, to file and prosecute what would otherwise be Borrower’s claim for any change insuch proceeds, and to collect, receipt for and retain the same for disposition in accordance with Article VII. Borrower shall continue to pay the Debt at the time and in the manner provided for its payment in this Agreement, the Note and the Mortgage and the Debt shall not be reduced until any private restrictive covenantaward or payment therefor shall have been actually received and applied by Lender, zoning ordinanceafter the deduction of expenses of collection, to the reduction or other public or private restrictions, now or hereafter limiting or defining the uses which may be made discharge of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect on such Individual Continental Property or (v) any material relocation of the boundaries of the applicable Individual Continental PropertyDebt.
(fii) During Borrower shall promptly pay all common charges and special assessments imposed on the continuance Subject Condominium Units pursuant to the Condominium Documents when the same become due and payable. Borrower will deliver to Lender, promptly upon Lender’s request, evidence satisfactory to Lender that the common charges and special assessments imposed on the Subject Condominium Units have been so paid or are not then delinquent. Upon request, Borrower shall furnish paid receipts for the payment of the common charges and special assessments imposed on the Subject Condominium Units prior to the date the same shall become delinquent.
(iii) After request by Lender (but not more than twice a year unless an Event of DefaultDefault has occurred), Borrower will promptly obtain from the Board of Managers and the NYTC Board of Managers and deliver to Lender an estoppel certificate which shall have include (i) the rightamount of the unpaid common charges and special assessments, to if any, accrued against the extent permitted under Property, (ii) that the Condominium DocumentsDocuments have not been modified or amended, but not the obligation, to cure any default (iii) that all payments due and payable by Borrower under the Condominium Documents to have been paid in full and (iv) that neither Property Owner, Borrower nor the extent such Board of Managers or the NYTC Board of Managers, as applicable, is in default could reasonably be expected to have a Material Adverse Effect on the Individual Property.
(g) Upon the occurrence and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all of the rights and privileges of Borrower. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium Charges.
(h) During the continuance of an Event of Default, Lender shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions of the Condominium Documents.
(i) Borrower shall not implement Notwithstanding anything herein to the contrary, while a Net Lease is in force and effect, any action or decision by the Net Tenant relating to the Condominium regime at any Property Documents which is permitted pursuant to the Net Lease without the prior written consent of Lenderthe landlord thereunder and which does not require the consent of the landlord’s mortgagee or pledgee, pursuant to the Net Lease, if performed by the Net Tenant, will not constitute a default under this Section 5.29.
Appears in 1 contract
Samples: Loan Agreement (Corporate Property Associates 17 - Global INC)
Condominium Covenants. (a) With respect to each Condominium, Borrower covenants as follows:
shall (i) it will notperform all of its obligations under the Condominium Documents, without Lender’s prior written consentexcept where the failure to do so would not reasonably be expected to have a Material Adverse Effect and (ii) subject to its right to contest, vote to amendif any, modifyunder the Condominium Documents, supplement pay, when due and payable, all Condominium Charges.
(b) If Borrower shall default in the performance or terminateobservance of any term, covenant or consent to (1) the termination condition of any of the Condominium Documents on the part of Borrower to be performed or (2) observed and the amendment, modification or supplementation of any of the Condominium Documents, in each case, in any material respect which same would cause reasonably be expected to have a Material Adverse Effect on Effect, then, after the expiration of any applicable Individual Property;
(ii) it will pay (or cause to be paid) all Condominium Charges notice and expenses actually assessed against, cure periods provided for herein and payable by, those Units then owned or leased by it pursuant to without limiting the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, generality of the other than assessments or Condominium Charges that are being contested in good faith pursuant to provisions of the applicable Condominium Documents Mortgage and this Agreement;
(iii) it will comply in all material respects with Agreement and without waiving or releasing Borrower from any of its obligations hereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of the Condominium Documents on its the part of Borrower, to be complied with, pursuant performed or observed or to the applicable Condominium Documents be promptly performed or observed on behalf of Borrower. Lender and any applicable Condominium Laws person designated as Xxxxxx’s agent by Lender shall have, and rules are hereby granted, the right to enter upon the Property at any reasonable time, upon reasonable notice and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to timetime for the purpose of taking any such action, provided that and any such amounts so paid by Xxxxxx, and the failure reasonable out-of-pocket cost of such actions by Xxxxxx, shall be reimbursed by Borrower within five (5) Business Days of written notice to Borrower from Lender and if not so reimbursed shall be added to the Debt and shall bear interest at the Default Rate until reimbursed.
(c) Without Lender’s prior consent (which shall not be unreasonably withheld, conditioned or delayed), Borrower shall not vote at any meeting of owners of Units or permit its representatives on the Condominium Board to be inactive shall not be vote, or take any action whatsoever, respecting (i) any material modification, change, supplement, alteration or amendment to any of the Condominium Documents, (ii) the removal of a breach of this clause Unit from the Condominium, (iii) as long as such inactivity does not give rise any partition of all or a part of the property subject to a Material Adverse Effect on such Individual Property;
the Condominium Declaration, (iv) it will take all commercially reasonable actions as may be necessary from time to time to preserve and maintain any waiver or release of any material rights of Borrower under the Condominium Documents or any material increase in accordance with the applicable Condominium Law; it will notobligations of Borrower thereunder, without the prior written consent of Lender, 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 Law, or cause a partition of the Condominium;
(v) it will not, without Lender’s prior written consent, (A) vote to permit any adverse change in the nature of or decrease in the amount of any insurance covering all or a part of the terms Property and/or the Common Elements and the disposition of any proceeds thereof which would cause a violation of this Agreement or provisions of the Condominium Documents to be materially modified, supplemented or amendedother Loan Documents, including, without limitation, changing resulting in any failure to satisfy any of the boundaries requirements set forth in Section 5.1 hereof, (vi) the disposition of any Unitexcess insurance or Condemnation proceeds, changing (vii) a response to or action upon any ownership percentage interest Casualty, Condemnation, Material Alteration or vote allocated any other matter which requires Xxxxxx’s approval hereunder or the other Loan Documents or is, in each case, prohibited hereunder or the other Loan Documents unless Borrower satisfies the relevant conditions under the Loan Documents applicable to the matter for which Lender’s approval is required hereunder or the other Loan Documents, or (viii) the assessment or levy of any special assessment.
(d) Borrower shall not take (or cause to be taken) any action under the Condominium Documents that would be reasonably expected to result in the Mortgage not being “Permitted Mortgage” and/or Lender not being a Unit or changing any rights “Permitted Mortgagee” of the Property within the meaning of the Condominium Declaration.
(e) Subject to and in accordance with the terms and conditions of the Condominium Proxy, Xxxxxxxx has appointed Xxxxxx as Xxxxxxxx’s true and lawful attorney and proxy to vote, consent and otherwise act, on behalf of Borrower to appoint members to the Condominium Board or permit the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Borrower has under the Condominium Documents;
(vi) for so long , as Borrower or Manager controls a unit owner with respect to Borrower’s ownership of the Units, at all annual, special, and other meetings of the unit owners of the Condominium Board(or by written consent in lieu thereof) and at any other time Borrower is required to vote, it shall use commercially reasonable efforts consent or act as a unit owner, including without limitation, the right to cause designate, remove, or replace the members and officers of the Condominium Board that Borrower is entitled to (a) promptly comply with all Legal Requirements applicable designate, remove or replace. Prior to the Condominium and the Unit which Borrower owns, leases or otherwise occupies, (b) to the extent in Borrower’s control, promptly repair, replace or rebuild any part occurrence of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall not in such event vote to not repair, restore or rebuild such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased by the applicable Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; and
(A) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to , Xxxxxx’s rights under the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower Proxy shall provide to Lender prompt notice thereof and only be exercised in connection with Borrower’s activation (i) any amendment or modification to a material term or provision of such association and appointment the Condominium Documents which would reasonably be expected to have a Material Adverse Effect, (ii) any casualty and/or condemnation at the Property (including, without limitation, pursuant to Section 6.3.4 of board members, the Bylaws) and/or (iii) any vote to withdraw the Property from the provisions of the Condominium Act of the State of New York or any termination of the Condominium Documents. Borrower shall obtain resignation letters from each voting member of the related not revoke any Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of Proxy so long as the Loan following an Event of Defaultis outstanding.
(bf) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) the owner of condominium units in the Condominium or any of them, Units which comprise the Property (i) irrevocably waives, to the extent permitted by law and the Condominium Documentslaw, any applicable law which grants to the trustees trustees, members or the board of directors managers of the Condominium Board and/or the owners and/or lessee(s) of the condominium units rights to Net Proceeds derived from the Condominium Unit(s) owned by Borrower in the event of a casualty Casualty or a condemnation Condemnation which are inconsistent with the provisions of Article 7 hereof this Agreement and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards Net Proceeds related to the Condominium Unit(s) owned by Borrower in accordance with Article 7 hereof the provisions of this Agreement.
(g) On the Closing Date, Borrower shall (or shall cause each member of the Condominium Board appointed by Borrower to) execute and deliver to Lender an undated conditional resignation (a “Conditional Resignation”), whereby Borrower (or the members of the Condominium Board appointed by Borrower) tenders its resignations from the Condominium Board and instructs the Condominium Board that the successor members shall be designated by Lender, effective upon written notice from Lender to the extent permitted by applicable law Condominium Board that an Event of Default has occurred and is continuing; it being understood and agreed that such notice from the Lender shall be conclusive evidence that an Event of Default has occurred and is continuing and the Condominium Documents.
(c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which Board may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect rely on such Individual Continental Property notice from Lender without any further inquiry or (v) any material relocation of investigation. Upon the boundaries of the applicable Individual Continental Property.
(f) During the continuance occurrence of an Event of Default, Lender shall have may, by notice to Borrower, tender any Conditional Resignation, now or hereafter delivered in connection with the right, Loan to the extent permitted under Condominium Board, whereupon the resignation of any such member shall become effective and successor members to the Condominium DocumentsBoard shall be designated by Lender for so long as an Event of Default is continuing, but not provided that upon the obligation, to waiver or cure any default which is accepted by Borrower under Lender of the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Individual Property.
(g) Upon the occurrence and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all the members of the rights Condominium Board appointed by Xxxxxx shall immediately resign from the Condominium Board and privileges the members of Borrowerthe Condominium Board appointed by Xxxxxxxx shall be reinstated. Borrower hereby irrevocably appoints Upon the release of any Condominium Unit from the Lien of the Mortgage, Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act shall promptly return any Conditional Resignation with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium ChargesBoard member applicable to such Condominium Unit to Borrower and any such member appointed by Xxxxxx shall immediately resign from the Condominium Board.
(h) During In the continuance event of an Event any removal or resignation of Default, Lender shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions a member of the Condominium DocumentsBoard appointed by Xxxxxxxx, Borrower shall promptly appoint a successor member to the Condominium Board who is either (i) approved in writing by Xxxxxx (such approval not to be unreasonably withheld, conditioned or delayed) or (ii) a Person employed or Controlled by ALX, VRT, VRLP or any of their respective subsidiaries, and concurrently with such successor’s appointment to the Condominium Board, Xxxxxxxx shall deliver to Lender a Conditional Resignation executed by such successor member.
(i) Borrower shall not implement any will do all things reasonably necessary to preserve and to keep unimpaired its material rights, powers and privileges under the Condominium regime at any Documents and to prevent the termination or expiration of the Condominium Documents, or the withdrawal of the Property without from a condominium form of ownership under applicable law, to the prior written consent end that Borrower may enjoy all of Lenderthe material rights granted to it as a party to the Condominium Documents.
Appears in 1 contract
Samples: Loan Agreement (Alexanders Inc)
Condominium Covenants. (a) With Borrower shall comply with all terms, conditions and covenants of the Condominium Declaration (including all amendments thereto and all by-laws, rules and regulations promulgated or otherwise existing with respect to each Condominiumthe condominium regime (collectively, the “Rules”) as those are in force and effect.
(b) Except as may be required by the Condominium Declaration to evidence Borrower taking over control of the Board of Directors of the Condominium Association, Borrower covenants shall not agree to amend, modify or terminate the Condominium Declaration or any of the organizational documents of the Condominium Association or the Rules without the prior written consent of Lender, which may be granted or withheld by Lender in its sole and absolute discretion.
(c) Borrower shall not, except with the prior written consent of Lender, which may be granted or withheld in sole and absolute discretion of Lender (i) institute any action or proceeding for partition of the Condominium Project; (ii) vote for or consent to any modification of, amendment to or relaxation in the enforcement of any provision of the Condominium Declaration or the Rules which affects, alters or impairs the lien of the Mortgage or the security therefor or which materially increases the obligations or diminishes the rights of Lender;
(d) Borrower shall promptly pay, as follows:the same become due and payable, all common charges or other payments for maintenance and reserve funds and all assessments with respect to the Borrower Condominium Units as required by the Condominium Declaration or the Rules or any resolutions adopted pursuant thereto and shall promptly, upon demand, exhibit to Lender receipts for all such payments. In the event that Borrower fails to make such payments as the same become due and payable, Lender may, from time to time at it option, but without any obligation to do so and without notice to or demand upon Borrower, make such payments and the same shall be added to the Loan and shall bear interest until repaid at the Default Rate;
(e) Borrower shall not sell, transfer or assign any of its interests in any parking spaces which are part of the Condominium (except that Borrower shall have the right to allow tenants at the Project to use parking spaces pursuant to Leases entered in with such tenant) and Borrower shall not allow the Condominium Association to sell, assign, transfer or allocate to any Person, any of the parking spaces in the Condominium.
(f) Borrower shall provide Lender with copies of any notices received from the Condominium Association, the Condominium Manager or other Person alleging any default by the Borrower under the Condominium Declaration.
(g) Except as permitted under the Condominium Declaration, Borrower shall not permit the Condominium Association, without the prior written consent of Lender, to incur any Debt other than working capital and customary trade payables.
(h) Borrower shall cause the Condominium Association to discharge any Mechanics Lien within ten (10) Business Days of the date Borrower receives notice of the same and shall cause the Condominium Association to promptly obtain the dismissal of any proceedings for the foreclosure thereof. Lender acknowledges that if the Condominium Association is contesting any such Mechanics Lien in a manner which would otherwise satisfy the terms of Section 6.10 hereof, then the existence of such Mechanics Lien shall not constitute a breach of this Section 6.20(f).
(i) it will not, without Lender’s prior written consent, vote to amend, modify, supplement or terminate, or consent to (1) the termination of any of the Condominium Documents or (2) the amendment, modification or supplementation of any of the Condominium Documents, in each case, in any material respect which would cause a Material Adverse Effect on the applicable Individual Property;
(ii) it will pay (or cause to be paid) all Condominium Charges and expenses actually assessed against, and payable by, those Units then owned or leased by it pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, other than assessments or Condominium Charges that are being contested in good faith pursuant to the applicable Condominium Documents and this Agreement;
(iii) it will comply in all material respects with all of the terms, covenants and conditions on its part to be complied with, pursuant to the applicable Condominium Documents and any applicable Condominium Laws and rules and regulations that may be adopted for the Condominium as the same Borrower shall be in force and effect from time to time, provided that the failure of the Condominium Board to be inactive shall not be a breach of this clause (iii) as long as such inactivity does not give rise to a Material Adverse Effect on such Individual Property;
(iv) it will take all commercially reasonable actions as may be necessary from time to time to preserve and maintain the Condominium in accordance with the applicable Condominium Law; it will not, without the prior written consent of Lender, 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 Law, or cause a partition of the Condominium;
(v) it will not, without Lender’s prior written consent, (Ai) vote to permit any of the terms or provisions of change the Condominium Documents Manager (other than a change to be Property Manager as provided herein) or to materially modified, supplemented amend or amended, including, without limitation, changing the boundaries of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights of Borrower to appoint members to modify the Condominium Board or permit Management Agreement (except for such changes that may be required if Property Manager becomes the Condominium Manager), (ii) vote to be terminatedimpose any special assessment in excess of $50,000.00 in any calendar year, withdrawn from a condominium regime, partitioned, subdivided, expanded (iii) vote to eliminate the requirement (under applicable Florida law or otherwise modified and/or (B) relinquish any rights that Borrower has under the Condominium Documents;
(vi) for so long as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium and the Unit which Borrower owns, leases or otherwise occupies, (bDeclaration) to the extent in Borrower’s control, promptly repair, replace or rebuild any part of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall not in such event vote to not repair, restore or rebuild such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action have audited financial statements prepared with respect to the Condominium and/or Association and the Unit owned or leased by the applicable Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument or any other Loan DocumentCondominium, (eiv) refrain from establishing significant working vote to institute reserves for capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and improvements and/or (fv) refrain from creating any new Units or selling any Units; and
(A) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation of such association and appointment of board members, Borrower shall obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default.
(b) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 7 hereof and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof to the extent permitted by applicable law and the Condominium Documents.
(c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any amendment of the following matters in connection with any Condominium (unless expressly required under declaration, articles or rules of any master association to which the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect on such Individual Continental Property or (v) any material relocation of the boundaries of the applicable Individual Continental Propertysubject.
(fj) During Borrower agrees that in no event shall any Affiliate of Borrower acquire any Condominium Unit in the continuance of an Event of DefaultCondominium Project. Notwithstanding the foregoing, Lender shall have the rightacknowledges and agrees that Lansbrook Unit Acquisitions, to the extent permitted under the Condominium DocumentsLLC (“Acquisition LLC”), but not the obligation, to cure any default by Borrower under the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Individual Property.
(g) Upon the occurrence and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all of the rights and privileges Affiliate of Borrower. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium Charges.
(h) During the continuance of an Event of Default, Lender shall have the right to participate acquire additional Condominium Units in the Condominium Project, provided that, within sixty (60) days after such acquisition, such Condominium Units are transferred to Borrower and the remaining conditions of this subsection G) are satisfied with respect to such acquisition. Notwithstanding anything to the contrary contained herein, Condominium Units acquired by Acquisition LLC which are subject to mortgage debt shall be transferred to Borrower, free and clear of such mortgage debt, within fifteen (15) months after such acquisition (it being understood that, pursuant to Section 6.21, in no event shall Acquisition LLC own, at any arbitration proceeding instituted one time, more than five (5) Condominium Units which are subject to mortgage debt). In addition, Borrower agrees that, within thirty (30) days from the date it acquires any Condominium Unit in accordance with the provisions Condominium Project, it shall spread the lien of the Mortgage to cover such Condominium Unit whether or not Lender has funded the acquisition of the Condominium DocumentsUnit pursuant to Article 3 hereof (it being understood that the Borrower must at all times remain a Single Purpose Entity and that all assets owned by the Borrower must be subject to the lien of the Mortgage).
(ik) In the event of the failure of Borrower to perform any of its obligations under the Condominium Declaration or Rules within a period of thirty (30) days (unless the Condominium Declaration requires sooner performance) after notice from the Condominium Association or from Lender, or in the case of any such default which cannot, with due diligence, be cured or remedied within such period, if Borrower fails to proceed promptly after such notice to cure or remedy the same with due diligence, then in any such case Lender may, from time to time at its option, but without any obligation so to do, cure or remedy any such default of Borrower (Borrower hereby authorizing Lender to enter upon the Project as may be necessary for such purposes) and all sums reasonably expended by Lender for such purposes, including reasonable counsel fees, shall be added to the Loan and shall become due and payable and shall bear interest until repaid at the Default Rate;
(1) Borrower shall not implement offer for sale any individual Borrower Condominium Units within the Project (and in no event shall Lender have any obligation to partially release any Condominium regime at any Property without Units which are part of the prior written consent of Lender.Project); and
Appears in 1 contract
Samples: Loan Agreement (Bluerock Residential Growth REIT, Inc.)
Condominium Covenants. (a) With respect to each Condominium, Borrower covenants as follows:
(i) it will notBorrower shall pay all Condominium Assessments, without Lender’s prior written consentas and when the same become due and payable, vote subject to amend, modify, supplement or terminate, or consent any right of Borrower to (1) contest same in accordance with the termination of any provisions of the Condominium Documents and provided that Borrower shall exercise any such right if and only if: (i) such proceeding suspends the collection of such Condominium Assessments and the Property will not be in danger of being sold for such unpaid Condominium Assessments, or Borrower has paid all of such Condominium Assessments under protest, (2ii) such proceeding is permitted under and is conducted in accordance with the amendment, modification or supplementation of any provisions of the Condominium Documents, (iii) if Borrower has not paid the disputed amounts in each casefull under protest, Borrower shall deposit with Administrative Agent cash (or other security as may be approved, in writing, by Administrative Agent) in an amount Administrative Agent deems sufficient to insure the payment of any material respect such Condominium Assessments together with interest and penalties thereon, if any, (iv) Borrower furnishes to Administrative Agent all other items reasonably requested by Lender and (v) upon a final determination thereof, Borrower promptly pays the amount of any such Condominium Assessments, together with all costs, interest and penalties which would cause a Material Adverse Effect on the applicable Individual Property;may be payable in connection therewith.
(ii) it will pay In addition to the financial reporting requirements of this Agreement Borrower shall furnish the following to Lender, each prepared in such detail as reasonably required by Administrative Agent and certified by an officer of Borrower to be true, complete and correct: as soon as available, but in any event within forty-five (45) days after the end of each fiscal quarter, evidence satisfactory to Administrative Agent that all Condominium Assessments for the immediately preceding quarter which are then due and payable for the Property, have been paid by Borrower (or cause are being duly and properly contested in accordance with Section (a)(l) above) which evidence shall include, without limitation, a true and correct photocopy of Borrower’s cancelled check(s) evidencing such payment(s) with respect thereto, provided, however, in lieu of furnishing such evidence to be paid) all Administrative Agent, Borrower shall have the right to deposit cash with Lender in the full annual amount of such Condominium Charges and expenses actually assessed against, and payable by, those Units then owned or leased by it pursuant Assessments due with respect to the applicable Condominium Documents (or Ground LeaseProperty, if applicable) prior to delinquency, other than assessments or Condominium Charges that are being contested which deposit shall be held by Administrative Agent as additional security for the Loan until such time as satisfactory evidence of such payment in good faith pursuant to the applicable Condominium Documents and accordance with this Agreement;clause is accepted by Administrative Agent.
(iii) Borrower shall observe and enforce all obligations imposed upon it will comply in all material respects with all of under the Condominium Documents and shall enforce the terms, covenants and conditions on its part contained in the Condominium Documents to be complied with, pursuant to observed or performed upon the applicable Condominium Documents and any applicable Condominium Laws and rules and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to time, provided that the failure part of the Condominium Board to be inactive shall not be other parties thereunder in a breach of this clause (iii) as long as such inactivity does not give rise to a Material Adverse Effect on such Individual Property;commercially reasonable manner.
(iv) it will Borrower shall not alter, modify or change the material terms of, nor terminate, any of the Condominium Documents without Administrative Agent’s consent (which consent shall not be unreasonably withheld, conditioned or delayed).
(v) Borrower shall comply with any Law applicable to the condominium regime at the Property, the Land or the sale or transfer of the Land, including but not limited to, the securities and condominium laws of the State where the Property is located and the rules and regulations pertaining thereto.
(vi) Borrower shall take all commercially reasonable actions as may be necessary from time to time to preserve and maintain the Condominium condominium regime at the Property in accordance with the applicable Condominium Law; it will not, without the prior written consent of Lender, 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 Law, or cause a partition laws of the Condominium;State where the Property is located.
(vvii) it will not, without Lender’s prior written consent, (A) vote to permit Provided that the same was not included in any of the terms reports, statements, certificates or other documentation submitted to Administrative Agent, Borrower shall give Administrative Agent prompt notice of any special assessment relating to the condominium regime received by Borrower.
(viii) Borrower shall provide Administrative Agent with notice of any proposed additions, alterations or improvements proposed by any Condominium Board costing in excess of $50,000 and provided that Borrower or its designee has consent rights under the Condominium Documents, Borrower shall not consent to same without Administrative Agent’s prior approval, not to be unreasonably withheld.
(ix) Borrower shall promptly deliver to Administrative Agent a true and complete copy of each and every notice of default received or delivered by Borrower with respect to any obligation of Borrower or any other party under the Condominium Documents.
(x) If a Default has occurred and is continuing, Borrower hereby acknowledges and agrees that, subject to the provisions of the Condominium Documents Documents, Administrative Agent (or its nominee) shall be solely entitled to be materially modifiedremove any Condominium Board members appointed by Borrower and/or to designate replacement or substitute members of the Condominium Board. If a Default has occurred and is continuing, supplemented Administrative Agent shall have the right to exercise the power of attorney granted pursuant to the Proxy (as hereinafter defined) to exercise all rights, powers and remedies of Borrower pursuant to the Condominium Documents. The rights granted to Lender under the Proxy shall automatically terminate upon the payment of the Loan in full or amendedupon a defeasance of the Loan in accordance with the terms hereof.
(xi) If a Default has occurred and is continuing, Administrative Agent may, at its option, and Borrower hereby grants and assigns to Administrative Agent, from and after the occurrence and during the continuation of a Default, the right, either by itself or by its nominee or designee, in the name of Borrower, to exercise the rights, powers and remedies of Borrower pursuant to the Condominium Documents. Such rights and remedies shall include, without limitation, the right to exercise all voting, consent, managerial and other rights relating to the Condominium, whether in Borrower’s name or otherwise, and the right to exercise Borrower’s rights in the Condominium, including, without limitation, changing the boundaries voting to elect members of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights of Borrower to appoint members to the Condominium Board or permit the Condominium and voting to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Borrower has under the Condominium Documents;
(vi) for so long as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium and the Unit which Borrower owns, leases or otherwise occupies, (b) to the extent in Borrower’s control, promptly repair, replace or rebuild any part of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall not in such event vote to not repair, restore or rebuild such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased by the applicable Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; and
(A) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation of such association and appointment of board members, Borrower shall obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default.
(b) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 7 hereof and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof to the extent permitted by applicable law and amend the Condominium Documents.
(c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect on such Individual Continental Property or (v) any material relocation of the boundaries of the applicable Individual Continental Property.
(f) During the continuance of an Event of Default, Lender shall have the right, to the extent permitted under the Condominium Documents, but not the obligation, to cure any default by Borrower under the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Individual Property.
(g) Upon the occurrence and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all of the rights and privileges of Borrower. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium Charges.
(h) During the continuance of an Event of Default, Lender shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions of the Condominium Documents.
(i) Borrower shall not implement any Condominium regime at any Property without the prior written consent of Lender.
Appears in 1 contract
Samples: Loan Agreement (Acadia Realty Trust)
Condominium Covenants. (a) With respect to each Condominium, Borrower covenants as follows:
(i) it will notBorrower shall pay all Condominium Assessments, without Lender’s prior written consentas and when the same become due and payable, vote subject to amend, modify, supplement or terminate, or consent any right of Borrower to (1) contest same in accordance with the termination of any provisions of the Condominium Documents and provided that Borrower shall exercise any such right if and only if: (i) such proceeding suspends the collection of such Condominium Assessments and the Property will not be in danger of being sold for such unpaid Condominium Assessments, or Borrower has paid all of such Condominium Assessments under protest, (2ii) such proceeding is permitted under and is conducted in accordance with the amendment, modification or supplementation of any provisions of the Condominium Documents, (iii) if Borrower has not paid the disputed amounts in each casefull under protest, Borrower shall deposit with Lender cash (or other security as may be approved, in writing, by Lender) in an amount Lender deems sufficient to insure the payment of any material respect such Condominium Assessments together with interest and penalties thereon, if any, provided that after a Securitization, one hundred twenty-five percent (125%) of the contested amount (plus anticipated penalty and interest) shall be deposited with Lender, (iv) Borrower furnishes to Lender all other items reasonably requested by Lender and (v) upon a final determination thereof, Borrower promptly pays the amount of any such Condominium Assessments, together with all costs, interest and penalties which would cause a Material Adverse Effect on the applicable Individual Property;may be payable in connection therewith.
(ii) it will pay In addition to the financial reporting requirements of Section 5.1.11 hereof Borrower shall furnish the following to Lender, each prepared in such detail as reasonably required by Lender and certified by a Responsible Officer to be true, complete and correct: as soon as available, but in any event within forty-five (45) days after the end of each fiscal quarter, evidence satisfactory to Lender that all Condominium Assessments for the immediately preceding quarter which are then due and payable for an Individual Property, have been paid by Borrower (or cause to be paid) all Condominium Charges and expenses actually assessed against, and payable by, those Units then owned or leased by it pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, other than assessments or Condominium Charges that are being duly and properly contested in good faith pursuant accordance with Section (a)(1) above) which evidence shall include, without limitation, a true and correct photocopy of Borrower's cancelled check(s) evidencing such payment(s) with respect to such Individual Property provided, however, in lieu of furnishing such evidence to Lender, Borrower shall have the applicable right to deposit cash with Lender in the full annual amount of such Condominium Documents and Assessments due with respect to such Individual Property, which deposit shall be held by Lender as additional security for the Loan until such time as satisfactory evidence of such payment in accordance with this Agreement;clause is accepted by Lender.
(iii) Borrower shall observe and enforce all obligations imposed upon it will comply in all material respects with all of under the Condominium Documents and shall enforce the terms, covenants and conditions on its part contained in the Condominium Documents to be complied with, pursuant to observed or performed upon the applicable Condominium Documents and any applicable Condominium Laws and rules and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to time, provided that the failure part of the Condominium Board to be inactive shall not be other parties thereunder in a breach of this clause (iii) as long as such inactivity does not give rise to a Material Adverse Effect on such Individual Property;commercially reasonable manner.
(iv) it will Borrower shall not alter, modify or change the material terms of, nor terminate, any of the Condominium Documents without Lender’s consent (which consent shall not be unreasonably withheld, conditioned or delayed).
(v) Borrower shall comply with any such state, local or federal law, rule and regulation applicable to the condominium regime at the Property, the Land or the sale or transfer of the Land, including but not limited to, the securities and condominium laws of the State where the Property is located and the rules and regulations pertaining thereto.
(vi) Borrower shall take all commercially reasonable actions as may be necessary from time to time to preserve and maintain the Condominium condominium regime at the Property in accordance with the applicable Condominium Law; it will notlaws of the State where the Property is located.
(vii) Provided that the same was not included in any of the reports, without the prior written consent of statements, certificates or other documentation submitted to Lender, take Borrower shall give Lender prompt notice of any special assessment relating to the condominium regime received by Borrower.
(viii) Borrower shall provide Lender with notice of any proposed additions, alterations or improvements proposed by any Condominium Board costing in excess of $50,000 and hereby assigns to Lender any right it may have to take) any action to terminate the Condominium, withdraw provided that Borrower or its designee has consent rights under the Condominium from the Condominium LawDocuments, or cause a partition of the Condominium;
(v) it will not, Borrower shall not consent to same without Lender’s prior written consentapproval, (A) vote to permit any of the terms or provisions of the Condominium Documents not to be materially modified, supplemented or amended, including, without limitation, changing the boundaries of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights of Borrower to appoint members to the Condominium Board or permit the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Borrower has under the Condominium Documents;unreasonably withheld.
(viix) for so long as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium and the Unit which Borrower owns, leases or otherwise occupies, (b) to the extent in Borrower’s control, promptly repair, replace or rebuild any part of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall not in such event vote promptly deliver to not repair, restore Lender a true and complete copy of each and every notice of default received or rebuild such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for delivered by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased by the applicable any obligation of Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; and
(A) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation of such association and appointment of board members, Borrower shall obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default.
(b) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 7 hereof and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof to the extent permitted by applicable law and party under the Condominium Documents.
(cx) Lender shall have the rightIf an Event of Default has occurred and is continuing, Borrower hereby acknowledges and agrees that, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; Documents, Lender (ivor its nominee) the creation of, shall be solely entitled to remove any Condominium Board members appointed by Borrower and/or to designate replacement or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made substitute members of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect on such Individual Continental Property or (v) any material relocation of the boundaries of the applicable Individual Continental Property.
(f) During the continuance of Condominium Board. If an Event of Default, Lender shall have the right, to the extent permitted under the Condominium Documents, but not the obligation, to cure any default by Borrower under the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Individual Property.
(g) Upon the occurrence Default has occurred and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all of the rights and privileges of Borrower. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium Charges.
(h) During the continuance of an Event of Defaultis continuing, Lender shall have the right to participate exercise the power of attorney granted pursuant to the Proxy (as hereinafter defined) to exercise all rights, powers and remedies of Borrower pursuant to the Condominium Documents. The rights granted to Lender under the Proxy shall automatically terminate upon the payment of the Loan in any arbitration proceeding instituted full or upon a defeasance of the Loan in accordance with the provisions terms hereof.
(xi) If an Event of Default has occurred and is continuing, Lender may, at its option, and Borrower hereby grants and assigns to Lender, from and after the occurrence and during the continuation of an Event of Default, the right, either by itself or by its nominee or designee, in the name of Borrower, to exercise the rights, powers and remedies of Borrower pursuant to the Condominium Documents. Such rights and remedies shall include, without limitation, the right to exercise all voting, consent, managerial and other rights relating to the Condominium, whether in Borrower's name or otherwise, and the right to exercise Borrower's rights in the Condominium, including, without limitation, voting to elect members of the Condominium Board and voting to amend the Condominium Documents.
(i) Borrower shall not implement any Condominium regime at any Property without the prior written consent of Lender.
Appears in 1 contract
Condominium Covenants. (a) With respect to each Condominium, Borrower covenants as follows:
shall (i) it will notperform all of its obligations under the Condominium Documents, without Lender’s prior written consentexcept where the failure to do so would not reasonably be expected to have a Material Adverse Effect and (ii) subject to its right to contest, vote to amendif any, modifyunder the Condominium Documents, supplement pay, when due and payable, all Condominium Charges.
(b) If Borrower shall default in the performance or terminateobservance of any term, covenant or consent to (1) the termination condition of any of the Condominium Documents on the part of Borrower to be performed or (2) observed and the amendment, modification or supplementation of any of the Condominium Documents, in each case, in any material respect which same would cause reasonably be expected to have a Material Adverse Effect on Effect, then, after the expiration of any applicable Individual Property;
(ii) it will pay (or cause to be paid) all Condominium Charges notice and expenses actually assessed against, cure periods provided for herein and payable by, those Units then owned or leased by it pursuant to without limiting the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, generality of the other than assessments or Condominium Charges that are being contested in good faith pursuant to provisions of the applicable Condominium Documents Mortgage and this Agreement;
(iii) it will comply in all material respects with Agreement and without waiving or releasing Borrower from any of its obligations hereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of the Condominium Documents on its the part of Borrower, to be complied with, pursuant performed or observed or to the applicable Condominium Documents be promptly performed or observed on behalf of Borrower. Lender and any applicable Condominium Laws person designated as Lender’s agent by Lender shall have, and rules are hereby granted, the right to enter upon the Property at any reasonable time, upon reasonable notice and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to timetime for the purpose of taking any such action, provided that and any such amounts so paid by Lender, and the failure reasonable out-of-pocket cost of such actions by Lender, shall be reimbursed by Borrower within five (5) Business Days of written notice to Borrower from Lender and if not so reimbursed shall be added to the Debt and shall bear interest at the Default Rate until reimbursed.
(c) Without Lender’s prior consent (which shall not be unreasonably withheld, conditioned or delayed), Borrower shall not vote at any meeting of owners of Units or permit its representatives on the Condominium Board to be inactive shall not be vote, or take any action whatsoever, respecting (i) any material modification, change, supplement, alteration or amendment to any of the Condominium Documents, (ii) the removal of a breach of this clause Unit from the Condominium, (iii) as long as such inactivity does not give rise any partition of all or a part of the property subject to a Material Adverse Effect on such Individual Property;
the Condominium Declaration, (iv) it will take all commercially reasonable actions as may be necessary from time to time to preserve and maintain any waiver or release of any material rights of Borrower under the Condominium Documents or any material increase in accordance with the applicable Condominium Law; it will notobligations of Borrower thereunder, without the prior written consent of Lender, 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 Law, or cause a partition of the Condominium;
(v) it will not, without Lender’s prior written consent, (A) vote to permit any adverse change in the nature of or decrease in the amount of any insurance covering all or a part of the terms Property and/or the Common Elements and the disposition of any proceeds thereof which would cause a violation of this Agreement or provisions of the Condominium Documents to be materially modified, supplemented or amendedother Loan Documents, including, without limitation, changing resulting in any failure to satisfy any of the boundaries requirements set forth in Section 5.1 hereof, (vi) the disposition of any Unitexcess insurance or Condemnation proceeds, changing (vii) a response to or action upon any ownership percentage interest Casualty, Condemnation, Material Alteration or vote allocated any other matter which requires Lender’s approval hereunder or the other Loan Documents or is, in each case, prohibited hereunder or the other Loan Documents unless Borrower satisfies the relevant conditions under the Loan Documents applicable to the matter for which Lender’s approval is required hereunder or the other Loan Documents, or (viii) the assessment or levy of any special assessment.
(d) Borrower shall not take (or cause to be taken) any action under the Condominium Documents that would be reasonably expected to result in the Mortgage not being “Permitted Mortgage” and/or Lender not being a Unit or changing any rights “Permitted Mortgagee” of the Property within the meaning of the Condominium Declaration.
(e) Subject to and in accordance with the terms and conditions of the Condominium Proxy, Borrower has appointed Lender as Borrower’s true and lawful attorney and proxy to vote, consent and otherwise act, on behalf of Borrower to appoint members to the Condominium Board or permit the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Borrower has under the Condominium Documents;
(vi) for so long , as Borrower or Manager controls a unit owner with respect to Borrower’s ownership of the Units, at all annual, special, and other meetings of the unit owners of the Condominium Board(or by written consent in lieu thereof) and at any other time Borrower is required to vote, it shall use commercially reasonable efforts consent or act as a unit owner, including without limitation, the right to cause designate, remove, or replace the members and officers of the Condominium Board that Borrower is entitled to (a) promptly comply with all Legal Requirements applicable designate, remove or replace. Prior to the Condominium and the Unit which Borrower owns, leases or otherwise occupies, (b) to the extent in Borrower’s control, promptly repair, replace or rebuild any part occurrence of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall not in such event vote to not repair, restore or rebuild such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased by the applicable Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; and
(A) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to , Lender’s rights under the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower Proxy shall provide to Lender prompt notice thereof and only be exercised in connection with Borrower’s activation (i) any amendment or modification to a material term or provision of such association and appointment the Condominium Documents which would reasonably be expected to have a Material Adverse Effect, (ii) any casualty and/or condemnation at the Property (including, 68 without limitation, pursuant to Section 6.3.4 of board members, the Bylaws and/or (iii) any vote to withdraw the Property from the provisions of the Condominium Act of the State of New York or any termination of the Condominium Documents. Borrower shall obtain resignation letters from each voting member of the related not revoke any Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of Proxy so long as the Loan following an Event of Defaultis outstanding.
(bf) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) the owner of condominium units in the Condominium or any of them, Units which comprise the Property (i) irrevocably waives, to the extent permitted by law and the Condominium Documentslaw, any applicable law which grants to the trustees trustees, members or the board of directors managers of the Condominium Board and/or the owners and/or lessee(s) of the condominium units rights to Net Proceeds derived from the Condominium Unit(s) owned by Borrower in the event of a casualty Casualty or a condemnation Condemnation which are inconsistent with the provisions of Article 7 hereof this Agreement and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards Net Proceeds related to the Condominium Unit(s) owned by Borrower in accordance with Article 7 hereof the provisions of this Agreement.
(g) On the Closing Date, Borrower shall (or shall cause each member of the Condominium Board appointed by Borrower to) execute and deliver to Lender an undated conditional resignation (a “Conditional Resignation”), whereby Borrower (or the members of the Condominium Board appointed by Borrower) tenders its resignations from the Condominium Board and instructs the Condominium Board that the successor members shall be designated by Lender, effective upon written notice from Lender to the extent permitted by applicable law Condominium Board that an Event of Default has occurred and is continuing; it being understood and agreed that such notice from the Lender shall be conclusive evidence that an Event of Default has occurred and is continuing and the Condominium Documents.
(c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which Board may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect rely on such Individual Continental Property notice from Lender without any further inquiry or (v) any material relocation of investigation. Upon the boundaries of the applicable Individual Continental Property.
(f) During the continuance occurrence of an Event of Default, Lender shall have may, by notice to Borrower, tender any Conditional Resignation, now or hereafter delivered in connection with the right, Loan to the extent permitted under Condominium Board, whereupon the resignation of any such member shall become effective and successor members to the Condominium DocumentsBoard shall be designated by Lender for so long as an Event of Default is continuing, but not provided that upon the obligation, to waiver or cure any default which is accepted by Borrower under Lender of the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Individual Property.
(g) Upon the occurrence and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all the members of the rights Condominium Board appointed by Lender shall immediately resign from the Condominium Board and privileges the members of Borrowerthe Condominium Board appointed by Borrower shall be reinstated. Borrower hereby irrevocably appoints Upon the release of any Condominium Unit from the Lien of the Mortgage, Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act shall promptly return any Conditional Resignation with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium ChargesBoard member applicable to such Condominium Unit to Borrower and any such member appointed by Lender shall immediately resign from the Condominium Board.
(h) During In the continuance event of an Event any removal or resignation of Default, Lender shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions a member of the Condominium DocumentsBoard appointed by Borrower, Borrower shall promptly appoint a successor member to the Condominium Board who is either (i) approved in writing by Lender (such approval not to be unreasonably withheld, conditioned or delayed) or (ii) a Person employed or Controlled by Guarantor, VRT, VRLP or any of their respective subsidiaries, and concurrently with such successor’s appointment to the Condominium Board, Borrower shall deliver to Lender a Conditional Resignation executed by such successor member.
(i) Borrower shall not implement any will do all things reasonably necessary to preserve and to keep unimpaired its material rights, powers and privileges under the Condominium regime at any Documents and to prevent the termination or expiration of the Condominium Documents, or the withdrawal of the Property without from a condominium form of ownership under applicable law, to the prior written consent end that Borrower may enjoy all of Lenderthe material rights granted to it as a party to the Condominium Documents.
Appears in 1 contract
Samples: Loan Agreement (Alexanders Inc)
Condominium Covenants. (a) With respect to each the Condominium, Borrower covenants as follows:
(i) it will not, without Lender’s prior written consent, vote to amend, modify, supplement or terminate, or consent to (1) the termination of any of the Condominium Documents or (2) the amendment, modification or supplementation of any of the Condominium Documents, in each case, in any material respect which would cause a Material Adverse Effect on the applicable Individual Property;
(ii) it will pay (or cause to be paid) all Condominium Charges and expenses actually assessed against, and payable by, those Units then owned or leased by it pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, other than assessments or Condominium Charges that are being contested in good faith pursuant to the applicable Condominium Documents and this Agreement;
(iii) it will comply in all material respects with all of the terms, covenants and conditions on its part to be complied with, pursuant to the applicable Condominium Documents and any applicable Condominium Laws and rules and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to time, provided that the failure of the Condominium Board to be inactive shall not be a breach of this clause (iii) as long as such inactivity does not give rise to a Material Adverse Effect on such Individual Property;
(iv) it will take all commercially reasonable actions as may be necessary from time to time to preserve and maintain the Condominium in accordance with the applicable Condominium Law; it will not, without the prior written consent of Lender, 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 Law, or cause a partition of the Condominium;
(v) it will not, without Lender’s prior written consent, (A) vote to permit any of the terms or provisions of the Condominium Documents to be materially modified, supplemented or amended, including, without limitation, changing the boundaries of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights of Borrower to appoint members to the Condominium Board or permit the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Borrower has under the Condominium Documents;
(vi) for so long as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium and the Unit which Borrower owns, leases or otherwise occupies, (b) to the extent in Borrower’s control, promptly repair, replace or rebuild any part of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall not in such event vote to not repair, restore or rebuild such the Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased by the applicable Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; and
(Avii) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation of such association and appointment of board members, Borrower shall obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default.
(b) The provisions of Article 7 hereof shall apply to the entirety of the Plaza del Sol Property or any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of the Plaza del Sol Property or such Individual Continental Property Property, as applicable, to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 7 hereof and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof to the extent permitted by applicable law and the Condominium Documents.
(c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any the Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the Plaza del Sol Property or the applicable Individual Continental Property Property, as applicable, from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect on such the Plaza del Sol Property or the applicable Individual Continental Property Property, as applicable, or (v) any material relocation of the boundaries of the Plaza del Sol Property or the applicable Individual Continental Property, as applicable.
(f) During the continuance of an Event of Default, Lender shall have the right, to the extent permitted under the Condominium Documents, but not the obligation, to cure any default by Borrower under the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Individual Property.
(g) Upon the occurrence and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all of the rights and privileges of Borrower. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium Charges.
(h) During the continuance of an Event of Default, Lender shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions of the Condominium Documents.
(i) Borrower shall not implement any Condominium regime at any Property without the prior written consent of Lender.
Appears in 1 contract
Samples: Loan Agreement (Retail Value Inc.)
Condominium Covenants. (a) With respect Borrower shall cause each Mortgage Borrower that owns an Individual Property subject to a condominium regime to observe and perform each Condominium, Borrower covenants as follows:
(i) it will not, without Lender’s prior written consent, vote to amend, modify, supplement or terminate, or consent to (1) the termination of any of the Condominium Documents or (2) the amendment, modification or supplementation of any of the Condominium Documents, in each case, in any and every material respect which would cause a Material Adverse Effect on the applicable Individual Property;
(ii) it will pay (or cause term to be paid) all Condominium Charges and expenses actually assessed against, and payable by, those Units then owned observed or leased performed by it such Mortgage Borrower pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) prior in all material respects. Borrower shall cause such Mortgage Borrower to delinquency, other than assessments or Condominium Charges that are being contested in good faith pursuant to the applicable Condominium Documents and this Agreement;
(iii) it will comply in all material respects with all obligations under the applicable Security Instrument relating to the Condominium Documents and/or the condominium regime to which such Individual Property is subject to. Borrower shall obtain the approval of Lender for each matter requiring the terms, covenants and conditions on its part approval of Mortgage Lender under the provisions of such Security Instrument. Borrower shall cause such Mortgage Borrower to deliver to Lender copies of all notices required to be complied with, pursuant delivered by such Mortgage Borrower to Mortgage Lender under such Security Instrument.
(b) Borrower shall cause each Mortgage Borrower that owns an Individual Property subject to a condominium regime to promptly deliver to Lender a true and full copy of all written notices of default received by such Mortgage Borrower with respect to any obligation or duty of such Mortgage Borrower under the applicable Condominium Documents and any applicable Condominium Laws and rules and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to time, provided that the failure of the Condominium Board to be inactive Documents.
(c) Borrower shall not be a breach of this clause (iii) as long as such inactivity does not give rise permit any Mortgage Borrower that owns an Individual Property subject to a Material Adverse Effect on such Individual Property;
(iv) it will take all commercially reasonable actions as may be necessary from time to time to preserve and maintain the Condominium in accordance condominium regime to, except with the applicable Condominium Law; it will not, without the prior written consent of Lender, take (and hereby assigns to Lender any right it may have to take) any action to terminate the Condominiumwhich consent shall not be unreasonably withheld, withdraw the Condominium from the Condominium Lawconditioned or delayed, or cause a partition of the Condominium;
(v) it will not, without Lender’s prior written consent, (A) vote to permit any of the terms or provisions of the Condominium Documents to be materially modified, supplemented or amended, including, without limitation, changing the boundaries of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights of Borrower to appoint members to the Condominium Board or permit the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Borrower has under the Condominium Documents;
(vi) for so long as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium and the Unit which Borrower owns, leases institute any action or otherwise occupies, proceeding for partition of such Individual Property; (b) vote for or consent to any material modification of, or amendment to or material relaxation in the extent in Borrower’s control, promptly repair, replace or rebuild any part enforcement of the applicable Condominium Documents or the termination of any condominium regime; and (c) in the Units event of damage to the extent benefitting the Unit ownedor destruction of such Individual Property, leased or otherwise used by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall vote not in such event vote to not repair, restore or rebuild such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased by the applicable Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; and
(A) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Individual Property if Mortgage Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation of have such association and appointment of board members, Borrower shall obtain resignation letters from each a voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default.
(b) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 7 hereof and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof to the extent permitted by applicable law and the Condominium Documents.
(c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts shall not permit any Mortgage Borrower that owns an Individual Property subject to obtain a condominium regime to revoke any proxy delivered to Lender in connection with the Loan and deliver relating to the Lender, any voting rights such Mortgage Borrower may have as a true and correct copy of unit owner in any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of themcondominium regime.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to To the extent that same is reasonably likely any approval rights, consent rights or other rights or privileges granted to cause a Material Adverse Effect on such Individual Continental Property or (v) any material relocation of the boundaries of lender in the applicable Individual Continental PropertyCondominium Documents are conditioned upon such approval rights, consent rights or other rights or privileges being required or contained in any mortgage, then such approval rights, consent rights or other rights or privileges shall be deemed to be required by this Agreement.
(f) During the continuance of an Event of Default, Lender shall have the right, With respect to the extent permitted under the Condominium Documents, but not the obligation, to cure any default by Borrower under the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Boston Common Individual Property.
(g) Upon , Borrower may permit Mortgage Borrower to convert the occurrence and continuance Boston Common Individual Property to a condominium form of an Event of Default, Lender may vote in place of Borrower and may exercise any and all of the rights and privileges of Borrower. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium Charges.
(h) During the continuance of an Event of Default, Lender shall have the right to participate in any arbitration proceeding instituted ownership in accordance with the terms and provisions of Section 54 of the Condominium Documents.Security Instrument relating to the Boston Common Individual Property so long as:
(iA) Mortgage Borrower complies with all of such terms and provisions to the satisfaction of Lender (such compliance as independently determined by Lender in its reasonable discretion), (B) Borrower obtains the approval of Lender for each matter requiring the approval of Mortgage Lender under the provisions of such Section 54 of the Security Instrument, and (C) Borrower causes such Mortgage Borrower to deliver to Lender copies of all notices, instruments and documents required to be delivered by such Mortgage Borrower to Mortgage Lender under such Section 54 of the Security Instrument;
(ii) Borrower complies with such additional requirements of Lender which are reasonably required by Lender to insure that the conversion of the Boston Common Individual Property will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents (including, without limitation, delivery of such documents as shall not implement any Condominium regime at any Property without the prior written consent reasonably be required by Lender, including opinions of counsel, UCC and title insurance, all in form and substance reasonably satisfactory to Lender); and
(iii) Lender shall have received payment of all of Lender’s reasonable costs and expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the conversion of the Boston Common Individual Property and the review and approval of the documents and information required to be delivered in connection therewith.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Archstone Smith Operating Trust)
Condominium Covenants. (a) With respect to each Condominium, Borrower covenants as follows:Borrowers shall perform in all material respects all of the obligations of the Unit owner under the Condominium Documents.
(ib) it will notBorrowers shall promptly pay, when due and payable all charges, dues and assessments imposed on the Unit owner under the Condominium Documents, including without Lender’s prior written consentlimitation, vote to amendany Common Charges. If Borrowers shall default in the performance or observance of any material term, modify, supplement covenant or terminate, or consent to (1) the termination condition of any of the Condominium Documents on the part of the Borrower owning the Unit to be performed or (2) observed, then, after the amendment, modification or supplementation expiration of any applicable notice and cure periods and without limiting the generality of the Condominium Documents, in each case, in any material respect which would cause a Material Adverse Effect on other provisions of the applicable Individual Property;
(ii) it will pay (or cause to be paid) all Condominium Charges and expenses actually assessed against, and payable by, those Units then owned or leased by it pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, other than assessments or Condominium Charges that are being contested in good faith pursuant to the applicable Condominium Documents Mortgage and this Agreement;
(iii) it will comply in all material respects with Agreement and without waiving or releasing Borrowers from any of their obligations hereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions on its part to be complied with, pursuant to the applicable Condominium Documents and any applicable Condominium Laws and rules and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to time, provided that the failure of the Condominium Board Documents on the part of the Borrower owning the Unit, to be inactive performed or observed or to be promptly performed or observed on behalf of Borrowers. Lender and any person designated as Lender’s agent by Lender shall not be a breach of this clause (iii) as long as such inactivity does not give rise have, and are hereby granted, the right to a Material Adverse Effect enter upon the Property at any reasonable time, on such Individual Property;
(iv) it will take all commercially reasonable actions as may be necessary notice and from time to time for the purpose of taking any such action. If Borrowers fail to preserve pay the Common Charges when due, Lender may pay the same and maintain such amounts shall be added to the Debt and shall bear interest at the Default Rate until paid. All sums so paid and expended by Lender and the interest thereon shall be secured by the Mortgage.
(c) Without Lender’s prior consent, not to be unreasonably withheld or delayed, no Borrower shall (i) modify, change, supplement, alter, amend in any material respect or terminate any of the Condominium Documents, (ii) waive or release any rights thereunder or (iii) consent to any material increase in accordance with its obligations thereunder. Borrowers hereby assign to Lender, as further security for the applicable payment of the Debt and for the performance and observance of the terms, covenants and conditions of the Mortgage and this Agreement, all of the rights, privileges and prerogatives of any Borrower, to modify, change, supplement, alter, amend or terminate any of the Condominium Law; it will notDocuments as provided above and any modification, change, supplement, alteration, amendment or termination of any of the Condominium Documents in violation of the foregoing without the prior written consent of LenderLender shall be void and of no force and effect. Borrowers may make any immaterial modification, take (and hereby assigns change, supplement, alteration, or amendment to Lender any right it may have to take) any action to terminate the Condominium, withdraw the Condominium from the Condominium LawDocuments without Lender’s consent unless such an immaterial modification, change, supplement, alteration, amendment would reasonably be expected to (A) materially adversely affect any Borrower or any Property, or cause a partition any Borrower’s business, properties, operations or condition, financial or otherwise, (B) adversely affect the rights of Lender to foreclose the Lien of the Condominium;
Mortgage or exercise its other rights under the Loan Documents or (vC) it will not, otherwise impair the Lien of the Mortgage. The Condominium shall not be terminated without Lender’s prior written consentconsent (whether as a result of a Casualty, Condemnation or otherwise). Notwithstanding anything to the contrary contained in this clause (c), Borrowers may obtain an amendment to the Quincy at Fourteenth Condominium Bylaws in the same form and substance attached hereto as Schedule X (the “Permitted Condo Amendment”), provided Lender shall have determined that each of the following conditions are satisfied: (A) vote to permit any no Event of the terms or provisions of the Condominium Documents to Default shall be materially modified, supplemented or amended, including, without limitation, changing the boundaries of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights of Borrower to appoint members to the Condominium Board or permit the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or continuing; (B) relinquish any rights that Borrower has under the Condominium Documents;
(vi) for so long as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium representations and warranties made by Borrowers and Guarantors in this Agreement and the Unit which Borrower owns, leases or otherwise occupies, (b) to the extent in Borrower’s control, promptly repair, replace or rebuild any part of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall not in such event vote to not repair, restore or rebuild such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action other Loan Documents with respect to the Condominium and/or the Unit owned or leased by the applicable Borrower that would be contrary to or inconsistent with, shall remain true and correct in any all material respect, any applicable covenant contained in this Agreement, the related Security Instrument or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder respects on and (f) refrain from creating any new Units or selling any Units; and
(A) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member as of the related Condominium Board appointed or selected by Borrower and any officers date of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and such Permitted Condo Amendment; (2C) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations legal description attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominiumapplicable Mortgage, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation Assignment of such association and appointment of board members, Borrower shall obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default.
(b) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law Leases and the Condominium UCC financing statements (collectively, the “DC Recordable Documents, any applicable law which grants to ”) reference the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 7 hereof and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof to the extent permitted by applicable law and the Condominium Documents.
(c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect on such Individual Continental Property or (v) any material relocation of the boundaries of the applicable Individual Continental Property.
(f) During the continuance of an Event of Default, Lender shall have the right, to the extent permitted under the Condominium Documents, but not the obligation, to cure any default by Borrower under the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Individual Property.
(g) Upon the occurrence and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all of the rights and privileges of Borrower. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium Charges.
(h) During the continuance of an Event of Default, Lender shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions of the Condominium Documents.
(i) Borrower shall not implement any Condominium regime at any Property without the prior written consent of Lender.Condominium
Appears in 1 contract
Samples: Loan Agreement (Generation Income Properties, Inc.)
Condominium Covenants. (a) With respect to each Condominium, Each Borrower covenants as follows:shall perform all of the obligations of the Unit owner under the applicable Condominium Documents.
(ib) it will notEach Borrower shall promptly pay, when due and payable all charges, dues and assessments to the applicable Condo Association imposed on the Unit owner under the applicable Condominium Documents, including without Lender’s prior written consentlimitation, vote to amendany Common Charges. If any Borrower shall default in the performance or observance of any material term, modify, supplement covenant or terminate, or consent to (1) the termination condition of any of the Condominium Documents on the part of Borrower to be performed or (2) observed, then, after the amendment, modification or supplementation expiration of any applicable notice and cure periods and without limiting the generality of the Condominium Documents, in each case, in any material respect which would cause a Material Adverse Effect on other provisions of the applicable Individual Property;
(ii) it will pay (or cause to be paid) all Condominium Charges and expenses actually assessed against, and payable by, those Units then owned or leased by it pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, other than assessments or Condominium Charges that are being contested in good faith pursuant to the applicable Condominium Documents Mortgage and this Agreement;
(iii) it will comply in all material respects with Agreement and without waiving or releasing any Borrower from any of its obligations hereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be reasonably appropriate to cause all of the terms, covenants and conditions of such Condominium Documents on its the part of any Borrower, to be complied with, pursuant performed or observed or to be promptly performed or observed on behalf of the applicable Borrower. Subject to the applicable rights, obligations, and limitations under the Condominium Documents Documents, Lender and any applicable Condominium Laws person designated as Lender’s agent by Lender shall have, and rules and regulations that may be adopted for are hereby granted, the Condominium as the same shall be in force and effect from time right to enter upon any Property at any reasonable time, provided that the failure of the Condominium Board to be inactive shall not be a breach of this clause (iii) as long as such inactivity does not give rise to a Material Adverse Effect on such Individual Property;
(iv) it will take all commercially reasonable actions as may be necessary notice and from time to time for the purpose of taking any such action. If any Borrower fails to preserve pay the Common Charges before the same are delinquent, Lender may pay the same and maintain the Condominium in accordance with the applicable Condominium Law; it will not, without the prior written consent of Lender, 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 Law, or cause a partition of the Condominium;
(v) it will not, without Lender’s prior written consent, (A) vote to permit any of the terms or provisions of the Condominium Documents to such amounts shall be materially modified, supplemented or amended, including, without limitation, changing the boundaries of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights of Borrower to appoint members added to the Condominium Board or permit Debt and shall bear interest at the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Borrower has under the Condominium Documents;
(vi) for Default Rate until paid. All sums so long as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium paid and expended by Lender and the Unit which Borrower owns, leases or otherwise occupies, (b) to the extent in Borrower’s control, promptly repair, replace or rebuild any part of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used interest thereon shall be secured by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall not in such event vote to not repair, restore or rebuild such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased by the applicable Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; and
(A) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation of such association and appointment of board members, Borrower shall obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default.
(b) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 7 hereof and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof to the extent permitted by applicable law and the Condominium DocumentsMortgage.
(c) Lender Without Lender’s prior consent, not to be unreasonably withheld or delayed, no Borrower shall have the right(i) modify, subject to change, supplement, alter, amend in any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records material respect or terminate any of the Condominium Documents, (ii) waive or release any material rights thereunder or (iii) consent to any material increase in its obligations thereunder. Each Borrower hereby assigns to Lender, as provided in further security for the Condominium Documents until such time as payment of the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts to obtain and deliver to for the Lender, a true performance and correct copy of any notice of material default or other material notice given to Borrower in respect observance of the observance terms, covenants and conditions of the Mortgage and this Agreement, all of the rights, privileges and prerogatives of such Borrower, to modify, change, supplement, alter, amend or terminate any of the Condominium Documents as provided above and any modification, change, supplement, alteration, amendment or any termination of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters Condominium Documents in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any violation of the foregoing violates without the Loan Documents; (ii) the manner in which any condemnation or threat prior consent of condemnation of all or a part of the applicable Individual Property Lender shall be defended void and of no force and effect. Borrowers may make any modification, change, supplement, alteration, or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the without Lender’s consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation ofprovided such an modification, or any change inchange, any private restrictive covenantsupplement, zoning ordinancealteration, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect on such Individual Continental Property or (v) any material relocation of the boundaries of the applicable Individual Continental Property.
(f) During the continuance of an Event of Default, Lender shall have the right, to the extent permitted under the Condominium Documents, but amendment will not the obligation, to cure any default by Borrower under the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on (A) such Borrower or the Individual applicable Property, or such Borrower’s business, properties, operations or condition, financial or otherwise, (B) adversely affect the rights of Lender to foreclose the Lien of the Mortgage or exercise its other rights under the Loan Documents or (C) otherwise impair the Lien of the Mortgage.
(gd) Upon the occurrence In each and continuance of an Event of Defaultevery case in which, Lender may vote in place of Borrower and may exercise any and all of the rights and privileges of Borrower. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium Charges.
(h) During the continuance of an Event of Default, Lender shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions of any Condominium Documents, the consent or the vote of the “Unit Owners” or Condominium Board (as defined below) is required, no Borrower shall vote or give such consent or allow the members on the Condominium Documents.
(i) Board appointed by any Borrower shall not implement to vote or give such consent, in any Condominium regime at manner that could impair the Lien of any Property without Mortgage or the security therefor without, in each and every case, the prior written consent of Lender.
(e) Each Borrower shall cause each of the members of the applicable Condominium Board appointed by such Borrower to execute and deliver to Lender an undated conditional resignation (a “Conditional Resignation”) of each such member, whereby each such member tenders his/her resignation from the applicable Condominium Board and instructs the applicable Condominium Board that the successor members shall be designated by Lender, effective upon written notice from Lender to such Condominium Board that an Event of Default has occurred; it being understood and agreed to that such notice from the Lender shall be conclusive evidence that an Event of Default has occurred and such Condominium Board may rely on such notice from Lender without any further inquiry or investigation. Upon the occurrence of an Event of Default and the acceleration of the Loan, Lender may, by notice to Borrowers, tender any Conditional Resignation, now or hereafter delivered in connection with the Loan to any Condominium Board, whereupon the resignation of any such member shall become effective and successor members to each Condominium Board shall be designated by Lender.
(f) Each Borrower shall cause each of the members of the applicable Condominium Board appointed by such Borrower to execute and deliver to Lender an undated irrevocable proxy coupled with an interest (a “Proxy”) of each such member, whereby each such member irrevocable authorizes Lender to vote on such member’s behalf with respect to matters for which such member has a vote on the applicable Condominium Board, effective upon written notice from Lender to such Condominium Board that an Event of Default has occurred; it being understood and agreed to that such notice from the Lender shall be conclusive evidence that an Event of Default has occurred and such Condominium Board may rely on such notice from Lender without any further inquiry or investigation. Upon the occurrence of an Event of Default and the acceleration of the Loan, Lender may, by notice to Borrowers, each Proxy, now or hereafter delivered in connection with the Loan to any Condominium Board.
(g) No Borrower will remove or replace any of the members of any Condominium Board appointed by such Borrower without delivering a Conditional Resignation and Proxy by such replacement member prior to or concurrently with such removal or replacement appointment.
(h) Laurel Borrower shall use reasonable efforts to cause the Sponsor to timely complete the 421-a Finalization Process and obtain a Final Certificate of Eligibility. Laurel Borrower agrees that it shall make a request, in writing, to the Sponsor within ten (10) days of the date hereof to complete the 421-a Process.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital New York City REIT, Inc.)
Condominium Covenants. (a) With respect to each Condominium, Borrower covenants as follows:
(i) it will notnot permit Mortgage Borrower to, without Lender’s prior written consent, vote to amend, modify, supplement or terminate, or consent to (1) the termination of any of the Condominium Documents or (2) the amendment, modification or supplementation of any of the Condominium Documents, in each case, in any material respect which would cause a Material Adverse Effect on materially and adversely affect the applicable Mortgage Borrower, Borrower, Individual PropertyProperty and related Collateral, Mezzanine A Collateral, the Mezzanine C Collateral and Mezzanine B Collateral and Lender’s rights under the Condominium Documents;
(ii) it will cause Mortgage Borrower to pay (or cause to be paid) all Condominium Common Charges and expenses actually assessed made against, and payable byor relating to, those Units then owned or leased by it pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, other than assessments or Condominium Common Charges that are being contested in good faith pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) and this Agreement;. Borrower shall deliver (or cause to be delivered) to Lender, promptly upon Lender’s request, evidence satisfactory to Lender that the Common Charges have been so paid or are not then delinquent with respect to the Units owned or leased by Mortgage Borrower. Borrower shall immediately notify Lender of (i) any adjustments made to the amount of any amounts due under the Condominium Documents and (ii) the imposition of any additional Common Charges or assessments under the Condominium Documents; 00000000.0.XXXXXXXX
(iii) it will cause Mortgage Borrower to comply in all material respects with all of the terms, covenants and conditions on its part to be complied with, pursuant to the applicable Condominium Documents and any applicable Condominium Laws and rules and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to time, provided that the failure of the Condominium Board to be inactive shall not be a breach of this clause (iii) as long as such inactivity does not give rise to a Material Adverse Effect on such Individual Property;
(iv) it will cause Mortgage Borrower to take all commercially reasonable actions as may be necessary from time to time to preserve and maintain the Condominium in accordance with the applicable Condominium Law; it will not, permit Mortgage Borrower to without the prior written consent of Lender, 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 Law, or cause a partition of the Condominium;
(v) it will notnot permit Mortgage Borrower to, without Lender’s prior written consent, (A) vote to permit any of the terms or provisions of the Condominium Documents to be materially modified, supplemented or amended, including, without limitation, changing the boundaries of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights of Mortgage Borrower to appoint members to the Condominium Board or permit the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Mortgage Borrower has under the Condominium Documents;
(vi) for so long as Borrower or Manager controls the Condominium Board, it shall cause Mortgage Borrower to use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium and the Unit which Mortgage Borrower owns, leases or otherwise occupies, (b) to the extent in Mortgage Borrower’s control, promptly repair, replace or rebuild any part of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Mortgage Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Mortgage Borrower shall not in such event vote to not repair, restore or rebuild such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower, any Other Mezzanine Borrower or Mortgage Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased by the applicable Mortgage Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument Ground Lease, the related Mortgage or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder or under the related Ground Lease (except to the extent Borrower has approval 00000000.0.XXXXXXXX or consent rights under the Ground Lease with respect thereto) and (f) refrain from creating any new Units or selling any Units; and;
(A) With respect to the Silver Spring Square Condominium (1) it has obtained caused Mortgage Borrower to obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Mortgage Borrower and any officers of the Silver Spring Square Condominium appointed by Mortgage Borrower, which resignation letters are attached hereto as Exhibit H E and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s the acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related any Condominium Board is appointed or selected by Borrower after the Closing Date, it shall cause Mortgage Borrower to obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H E from each voting member of such the Condominium Board appointed by or selected by Mortgage Borrower and any officers of the Silver Spring Square Condominium appointed by Mortgage Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s the acceleration of the Loan following an Event of Default; and and
(Bviii) it shall cause Mortgage Borrower to provide to the Condominium Board on the Closing Date a copy of the Mortgage with respect to the Seabrook CondominiumIndividual Property or portion thereof subject to the Condominium Documents, in the event that the Seabrook Condominium becomes active name and board members are appointedaddress of Mortgage Lender, Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation of such association and appointment of board members, Borrower shall obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender Servicer (as defined in escrow this Agreement and maythe Mortgage Loan Agreement), at Lender’s option, be submitted at any time after Lender’s acceleration and a general description of the Loan following an Event of Defaultand the Mortgage Loan.
(b) The provisions of Article 7 hereof 8 of the Mortgage Loan Agreement shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, BorrowerBorrower shall cause Mortgage Borrower to, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 7 hereof 8 of the Mortgage Loan Agreement and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof 8 of the Mortgage Loan Agreement to the extent permitted by applicable law and the Condominium Documents.
(c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use (and will cause Mortgage Borrower to use) commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect on such Individual Continental Property or (v) any material relocation of the boundaries of the applicable Individual Continental Property.
(f) During the continuance of an Event of Default, Lender shall have the right, to the extent permitted under the Condominium Documents, but not the obligation, to cure any default by Borrower under the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Individual Property.
(g) Upon the occurrence and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all of the rights and privileges of Borrower. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium Charges.
(h) During the continuance of an Event of Default, Lender shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions of the Condominium Documents.
(i) Borrower shall not implement any Condominium regime at any Property without the prior written consent of Lender.default
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Condominium Covenants. (a) With respect to each Condominium, Borrower covenants as follows:
shall (i) it will notperform all of its obligations under the Condominium Documents, without Lender’s prior written consentexcept where the failure to do so would not reasonably be expected to have a Material Adverse Effect and (ii) subject to its right to contest, vote to amendif any, modifyunder the Condominium Documents, supplement pay, when due and payable, all Condominium Charges.
(b) If Borrower shall default in the performance or terminateobservance of any term, covenant or consent to (1) the termination condition of any of the Condominium Documents on the part of Borrower to be performed or (2) observed and the amendment, modification or supplementation of any of the Condominium Documents, in each case, in any material respect which same would cause reasonably be expected to have a Material Adverse Effect on Effect, then, after the expiration of any applicable Individual Property;
(ii) it will pay (or cause to be paid) all Condominium Charges notice and expenses actually assessed against, cure periods provided for herein and payable by, those Units then owned or leased by it pursuant to without limiting the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, generality of the other than assessments or Condominium Charges that are being contested in good faith pursuant to provisions of the applicable Condominium Documents Mortgage and this Agreement;
(iii) it will comply in all material respects with Agreement and without waiving or releasing Borrower from any of its obligations hereunder, Administrative Agent shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of the Condominium Documents on its the part of Borrower, to be complied with, pursuant performed or observed or to the applicable Condominium Documents be promptly performed or observed on behalf of Borrower. Administrative Agent and any applicable Condominium Laws person designated as Administrative Agent’s agent by Administrative Agent shall have, and rules are hereby granted, the right to enter upon the Project at any reasonable time, upon reasonable notice and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to timetime for the purpose of taking any such action, provided and any such amounts so paid by Administrative Agent, and the reasonable out-of-pocket cost of such actions by Administrative Agent, shall be reimbursed by Borrower within five (5) Business Days of written notice to Borrower from Administrative Agent and if not so reimbursed shall be added to the Indebtedness and shall bear interest at the Default Rate until reimbursed.
(c) Without Administrative Agent’s prior consent (which shall not be unreasonably withheld, conditioned or delayed), Borrower shall not vote at any meeting of owners of Units or permit its representatives on the Condominium Board to vote, or take any action whatsoever, respecting (i) any material modification, change, supplement, alteration or amendment to any of the Condominium Documents, (ii) the removal of a Unit constituting a portion of the Project from the Condominium, (iii) any partition of all or a part of the property subject to the Condominium Declaration, (iv) any waiver or release of any material rights of Borrower under the Condominium Documents or any material increase in the obligations of Borrower thereunder, (v) any adverse change in the nature of or decrease in the amount of any insurance covering all or a part of the Project and/or the Common Elements and the disposition of any proceeds thereof which would cause a violation of this Agreement or the other Loan Documents, (vi) the disposition of any excess insurance or Condemnation proceeds, (vii) a response to or action upon any Casualty, Condemnation, Material Alteration or any other matter which requires Administrative Agent’s approval hereunder or the other Loan Documents or is, in each case, prohibited hereunder or the other Loan Documents unless Borrower satisfies the relevant conditions under the Loan Documents applicable to the matter for which Administrative Agent’s approval is required hereunder or the other Loan Documents, or (viii) the assessment or levy of any special assessment.
(d) Borrower shall not take (or cause to be taken) any action under the Condominium Documents that would be reasonably expected to result in the failure Mortgage not being “Permitted Mortgage” and/or Administrative Agent not being a “Permitted Mortgagee” of the Project within the meaning of the Condominium Declaration.
(e) Subject to and in accordance with the terms and conditions of the Condominium Proxy, Borrower has appointed Administrative Agent as Borrower’s true and lawful attorney and proxy to vote, consent and otherwise act, on behalf of Borrower under the Condominium Documents, as a unit owner with respect to Borrower’s ownership of the Units constituting the Project, at all annual, special, and other meetings of the unit owners of the Condominium (or by written consent in lieu thereof) and at any other time Borrower is required to vote, consent or act as a unit owner, including without limitation, the right to designate, remove, or replace the members and officers of the Condominium Board that Borrower is entitled to designate, remove or replace. Prior to the occurrence of an Event of Default, Administrative Agent’s rights under the Condominium Proxy shall only be inactive shall not be a breach of this clause exercised in connection with (iiii) as long as such inactivity does not give rise any amendment or modification to a Material Adverse Effect on such Individual Property;
(iv) it will take all commercially reasonable actions as may be necessary from time to time to preserve and maintain the Condominium in accordance with the applicable Condominium Law; it will not, without the prior written consent of Lender, 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 Law, material term or cause a partition of the Condominium;
(v) it will not, without Lender’s prior written consent, (A) vote to permit any of the terms or provisions provision of the Condominium Documents which would reasonably be expected to be materially modifiedhave a Material Adverse Effect, supplemented or amended, (ii) any casualty and/or condemnation at the Project (including, without limitation, changing pursuant to Section 6.3.4 and Article 9 of the boundaries Bylaws and/or (iii) any vote to withdraw the Project from the provisions of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights of Borrower to appoint members to the Condominium Board Act of the State of New York or permit the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Borrower has under termination of the Condominium Documents;
(vi) for . Borrower shall not revoke any Condominium Proxy so long as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium and the Unit which Borrower owns, leases or otherwise occupies, (b) to the extent in Borrower’s control, promptly repair, replace or rebuild any part of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall not in such event vote to not repair, restore or rebuild such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased by the applicable Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and is outstanding.
(f) refrain from creating any new Units or selling any Units; and
(A) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation of such association and appointment of board members, Borrower shall obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default.
(b) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) the owner of condominium units in the Condominium or any of themUnits which comprise the Project, to the extent permitted by law (i) irrevocably waives, to the extent permitted by law and the Condominium Documentslaw, any applicable law which grants to the trustees trustees, members or the board of directors managers of the Condominium Board and/or the owners and/or lessee(s) of the condominium units rights to Net Proceeds derived from the Unit(s) owned by Borrower in the event of a casualty Casualty or a condemnation Condemnation which are inconsistent with the provisions of Article 7 hereof this Agreement and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards Net Proceeds related to the Unit(s) owned by Borrower in accordance with Article 7 hereof the provisions of this Agreement.
(g) On the Closing Date, Borrower shall (or shall cause each member of the Condominium Board appointed by Borrower to) execute and deliver to Administrative Agent an undated conditional resignation (a “Conditional Resignation”), whereby Borrower (or the members of the Condominium Board appointed by Borrower) tenders its resignations from the Condominium Board and instructs the Condominium Board that the successor members shall be designated by Administrative Agent, effective upon written notice from Administrative Agent to the extent permitted by Condominium Board that an Event of Default has occurred and is continuing beyond any applicable law notice and/or cure period; it being understood and agreed that such notice from Administrative Agent shall be conclusive evidence that an Event of Default has occurred and is continuing beyond any applicable notice and/or cure period and the Condominium Documents.
(c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which Board may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect rely on such Individual Continental Property notice from Administrative Agent without any further inquiry or (v) any material relocation of investigation. Upon the boundaries of the applicable Individual Continental Property.
(f) During the continuance occurrence of an Event of Default, Lender shall have Administrative Agent may, by notice to Borrower, tender any Conditional Resignation, now or hereafter delivered in connection with the right, Loan to the extent permitted under Condominium Board, whereupon the resignation of any such member shall become effective and successor members to the Condominium DocumentsBoard shall be designated by Administrative Agent for so long as an Event of Default is continuing, but not provided that upon the obligation, to waiver or cure any default which is accepted by Borrower under Administrative Agent of the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Individual Property.
(g) Upon the occurrence and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all the members of the rights Condominium Board appointed by Administrative Agent shall immediately resign from the Condominium Board and privileges the members of Borrowerthe Condominium Board appointed by Borrower shall be reinstated. Borrower hereby irrevocably appoints Lender as its attorney-in-factUpon the release of any Unit from the Lien of the Mortgage, coupled with an interest, to vote as Borrower’s proxy and to act Administrative Agent shall promptly return any Conditional Resignation with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium ChargesBoard member applicable to such Unit to Borrower and any such member appointed by Administrative Agent shall immediately resign from the Condominium Board.
(h) During In the continuance event of an Event any removal or resignation of Default, Lender shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions a member of the Condominium DocumentsBoard appointed by Borrower, Borrower shall promptly appoint a successor member to the Condominium Board who is either (i) approved in writing by Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed) or (ii) a Person employed or Controlled by Guarantor, VRT, VRLP or any of their respective subsidiaries, and concurrently with such successor’s appointment to the Condominium Board, Borrower shall deliver to Administrative Agent a Conditional Resignation executed by such successor member.
(i) Borrower shall not implement any will do all things reasonably necessary to preserve and to keep unimpaired its material rights, powers and privileges under the Condominium regime at any Property without Documents and to prevent the prior written consent termination or expiration of Lenderthe Condominium Documents, or the withdrawal of the Project from a condominium form of ownership under applicable law, to the end that Borrower may enjoy all of the material rights granted to it as a party to the Condominium Documents.
Appears in 1 contract
Samples: Loan Agreement (Alexanders Inc)
Condominium Covenants. (a) With respect to each Condominium, Borrower covenants as follows:
shall (i) it will notperform all of its obligations under the Condominium Documents, without Lender’s prior written consentexcept where the failure to do so would not reasonably be expected to have a Material Adverse Effect and (ii) subject to its right to contest, vote to amendif any, modifyunder the Condominium Documents, supplement pay, when due and payable, all Condominium Charges. 99
(b) If Borrower shall default in the performance or terminateobservance of any term, covenant or consent to (1) the termination condition of any of the Condominium Documents on the part of Borrower to be performed or (2) observed and the amendment, modification or supplementation of any of the Condominium Documents, in each case, in any material respect which same would cause reasonably be expected to have a Material Adverse Effect on Effect, then, after the expiration of any applicable Individual Property;
(ii) it will pay (or cause to be paid) all Condominium Charges notice and expenses actually assessed against, cure periods provided for herein and payable by, those Units then owned or leased by it pursuant to without limiting the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, generality of the other than assessments or Condominium Charges that are being contested in good faith pursuant to provisions of the applicable Condominium Documents Mortgage and this Agreement;
(iii) it will comply in all material respects with Agreement and without waiving or releasing Borrower from any of its obligations hereunder, Administrative Agent shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of the Condominium Documents on its the part of Borrower, to be complied with, pursuant performed or observed or to the applicable Condominium Documents be promptly performed or observed on behalf of Borrower. Administrative Agent and any applicable Condominium Laws person designated as Administrative Agent’s agent by Administrative Agent shall have, and rules are hereby granted, the right to enter upon the Project at any reasonable time, upon reasonable notice and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to timetime for the purpose of taking any such action, provided that and any such amounts so paid by Administrative Agent, and the failure reasonable out-of-pocket cost of such actions by Administrative Agent, shall be reimbursed by Borrower within five (5) Business Days of written notice to Borrower from Administrative Agent and if not so reimbursed shall be added to the Indebtedness and shall bear interest at the Default Rate until reimbursed.
(c) Without Administrative Agent’s prior consent (which shall not be unreasonably withheld, conditioned or delayed), Borrower shall not vote at any meeting of owners of Units or permit its representatives on the Condominium Board to be inactive shall not be vote, or take any action whatsoever, respecting (i) any material modification, change, supplement, alteration or amendment to any of the Condominium Documents, (ii) the removal of a breach Unit constituting a portion of this clause the Project from the Condominium, (iii) as long as such inactivity does not give rise any partition of all or a part of the property subject to a Material Adverse Effect on such Individual Property;
the Condominium Declaration, (iv) it will take all commercially reasonable actions as may be necessary from time to time to preserve and maintain any waiver or release of any material rights of Borrower under the Condominium Documents or any material increase in the obligations of Borrower thereunder, (v) any adverse change in the nature of or decrease in the amount of any insurance covering all or a part of the Project and/or the Common Elements and the disposition of any proceeds thereof which would cause a violation of this Agreement or the other Loan Documents, (vi) the disposition of any excess insurance or Condemnation proceeds, (vii) a response to or action upon any Casualty, Condemnation, Material Alteration or any other matter which requires Administrative Agent’s approval hereunder or the other Loan Documents or is, in each case, prohibited hereunder or the other Loan Documents unless Borrower satisfies the relevant conditions under the Loan Documents applicable to the matter for which Administrative Agent’s approval is required hereunder or the other Loan Documents, or (viii) the assessment or levy of any special assessment.
(d) Borrower shall not take (or cause to be taken) any action under the Condominium Documents that would be reasonably expected to result in the Mortgage not being “Permitted Mortgage” and/or Administrative Agent not being a “Permitted Mortgagee” of the Project within the meaning of the Condominium Declaration.
(e) Subject to and in accordance with the applicable Condominium Law; it will not, without the prior written consent of Lender, take (terms and hereby assigns to Lender any right it may have to take) any action to terminate the Condominium, withdraw the Condominium from the Condominium Law, or cause a partition of the Condominium;
(v) it will not, without Lender’s prior written consent, (A) vote to permit any of the terms or provisions conditions of the Condominium Documents Proxy, Xxxxxxxx has appointed Administrative Agent as Xxxxxxxx’s true and lawful attorney and proxy to be materially modifiedvote, supplemented or amendedconsent and otherwise act, including, without limitation, changing the boundaries of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights on behalf of Borrower to appoint members to the Condominium Board or permit the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Borrower has under the Condominium Documents;
(vi) for so long , as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium and the Unit which Borrower owns, leases or otherwise occupies, (b) to the extent in Borrower’s control, promptly repair, replace or rebuild any part of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall not in such event vote to not repair, restore or rebuild such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action unit owner with respect to Xxxxxxxx’s ownership of the Condominium and/or Units constituting the Unit owned or leased by Project, at all annual, special, and other meetings of the applicable Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, unit owners of the related Security Instrument or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and 100
(f) refrain from creating any new Units or selling any Units; and
(A) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation of such association and appointment of board members, Borrower shall obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default.
(b) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) the owner of condominium units in the Condominium or any of themUnits which comprise the Project, to the extent permitted by law (i) irrevocably waives, to the extent permitted by law and the Condominium Documentslaw, any applicable law which grants to the trustees trustees, members or the board of directors managers of the Condominium Board and/or the owners and/or lessee(s) of the condominium units rights to Net Proceeds derived from the Unit(s) owned by Borrower in the event of a casualty Casualty or a condemnation Condemnation which are inconsistent with the provisions of Article 7 hereof this Agreement and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards Net Proceeds related to the Unit(s) owned by Borrower in accordance with Article 7 hereof the provisions of this Agreement.
(g) On the Closing Date, Borrower shall (or shall cause each member of the Condominium Board appointed by Borrower to) execute and deliver to Administrative Agent an undated conditional resignation (a “Conditional Resignation”), whereby Borrower (or the members of the Condominium Board appointed by Borrower) tenders its resignations from the Condominium Board and instructs the Condominium Board that the successor members shall be designated by Administrative Agent, effective upon written notice from Administrative Agent to the extent permitted by Condominium Board that an Event of Default has occurred and is continuing beyond any applicable law notice and/or cure period; it being understood and agreed that such notice from Administrative Agent shall be conclusive evidence that an Event of Default has occurred and is continuing beyond any applicable notice and/or cure period and the Condominium Documents.
(c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which Board may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect rely on such Individual Continental Property notice from Administrative Agent without any further inquiry or (v) any material relocation of investigation. Upon the boundaries of the applicable Individual Continental Property.
(f) During the continuance occurrence of an Event of Default, Lender shall have Administrative Agent may, by notice to Borrower, tender any Conditional Resignation, now or hereafter delivered in connection with the right, Loan to the extent permitted under Condominium Board, whereupon the resignation of any such member shall become effective and successor members to the Condominium DocumentsBoard shall be designated by Administrative Agent for so long as an Event of Default is continuing, but not provided that upon the obligation, to waiver or cure any default which is accepted by Borrower under Administrative Agent of the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Individual Property.
(g) Upon the occurrence and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all the members of the rights Condominium Board appointed by Administrative Agent shall immediately resign from the Condominium Board and privileges the members of Borrowerthe Condominium Board appointed by Xxxxxxxx shall be reinstated. Borrower hereby irrevocably appoints Lender as its attorney-in-factUpon the release of any Unit from the Lien of the Mortgage, coupled with an interest, to vote as Borrower’s proxy and to act Administrative Agent shall promptly return any Conditional Resignation with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium Charges.Board member applicable to such Unit to Borrower and any such member appointed by Administrative Agent shall immediately resign from the Condominium Board. 101
(h) During In the continuance event of an Event any removal or resignation of Default, Lender shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions a member of the Condominium DocumentsBoard appointed by Xxxxxxxx, Xxxxxxxx shall promptly appoint a successor member to the Condominium Board who is either (i) approved in writing by Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed) or (ii) a Person employed or Controlled by Guarantor, VRT, VRLP or any of their respective subsidiaries, and concurrently with such successor’s appointment to the Condominium Board, Xxxxxxxx shall deliver to Administrative Agent a Conditional Resignation executed by such successor member.
(i) Borrower shall not implement any will do all things reasonably necessary to preserve and to keep unimpaired its material rights, powers and privileges under the Condominium regime at any Property without Documents and to prevent the prior written consent termination or expiration of Lenderthe Condominium Documents, or the withdrawal of the Project from a condominium form of ownership under applicable law, to the end that Borrower may enjoy all of the material rights granted to it as a party to the Condominium Documents.
Appears in 1 contract
Samples: Loan Agreement (Alexanders Inc)
Condominium Covenants. (a) With respect In connection with its ownership of the Obligor Units, the applicable Obligor shall, to each Condominiumthe extent (x) permitted by law, Borrower covenants as followsand (y) failure to do so would cause a Property Material Adverse Effect:
(i) it will notcomply with all material terms, without Lender’s prior written consent, vote to amend, modify, supplement or terminate, or consent to (1) the termination of any conditions and covenants of the Condominium Documents Declaration as the same may be from time to time amended, and all documents and agreements binding upon or (2) the amendment, modification or supplementation of any of otherwise pertaining to the Condominium Documents, in each case, in any material respect which would cause a Material Adverse Effect on the applicable Individual Propertyor such Obligor;
(ii) it will pay (or cause conform to be paid) and abide by all Condominium Charges law affecting the Condominium, condominium development and expenses actually assessed againstland sales, including all applicable federal laws and payable by, those Units then owned or leased by it pursuant to laws of the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, other than assessments or Condominium Charges that are being contested in good faith pursuant to the applicable Condominium Documents and this AgreementState of Texas;
(iii) it will comply in all material respects promptly deliver to Lender a true and complete copy of each and every notice of default received by such Obligor with all respect to any obligation of such Obligor under the provisions of the termsDeclaration, covenants and conditions on its part to be complied with, pursuant to the applicable Condominium Documents and any applicable Condominium Laws and by-laws of the Association or the rules and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to time, provided that the failure of the Condominium Board to be inactive shall not be a breach of this clause (iii) as long as such inactivity does not give rise to a Material Adverse Effect on such Individual Propertypromulgated thereunder;
(iv) it will take all commercially reasonable actions as may be necessary from time deliver to time Lender copies of any written notices of default or event of default relating to preserve and maintain the Condominium in accordance with served by the applicable Condominium Law; it will notObligor;
(v) after the occurrence of an Event of Default, so long as any of the Loans are outstanding, the applicable Obligor shall not cast its vote(s) in the Association without the prior written consent of Lender, take Lender (and hereby assigns to Lender any right it may have to take) any action to terminate the Condominium, withdraw the Condominium from the Condominium Law, or cause a partition of the Condominium;
(v) it will not, without Lender’s prior written consent, (A) vote to permit any of the terms or provisions of the Condominium Documents to be materially modified, supplemented or amended, including, without limitation, changing the boundaries of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights of Borrower to appoint members to the Condominium Board or permit the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Borrower has under the Condominium Documents;
(vi) for so long as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium and the Unit which Borrower owns, leases or otherwise occupies, (b) to the extent in Borrower’s control, promptly repair, replace or rebuild any part of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall not in such event vote to not repair, restore or rebuild such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased by the applicable Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves unreasonably withheld or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; and
(A) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation of such association and appointment of board members, Borrower shall obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Defaultdelayed).
(b) The provisions In connection with its ownership of Article 7 hereof the Obligor Units, the applicable Obligor shall apply pay to the entirety Association all Condominium fees, assessments and charges assessed pursuant to the Declaration against the Obligor and the Obligor Units as and when the same become due and payable. Upon request of any Individual Continental Property Lender, the applicable Obligor shall deliver to Lender evidence reasonably satisfactory to Lender that is all Condominium fees, assessments and charges for the immediately preceding month or quarter, as applicable, and all other fees and charges assessed pursuant to the Declaration against the applicable Obligor and the Obligor Units, which are then due and payable, have been paid by such Obligor, which evidence shall include, without limitation, a Condominium as provided herein, notwithstanding the submission of any portion true and correct photocopy of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(sObligor's cancelled check(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 7 hereof and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof to the extent permitted by applicable law and the Condominium Documentsevidencing such payment(s).
(c) Lender shall have In the right, subject event proceeds of a Casualty or Condemnation with respect to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records common areas of the Condominium as provided in are required to be deposited into an account pursuant to Sections 11.04 and/or 12.01 of the Declaration, the applicable Obligor shall cause such the Condominium Documents until to select an Eligible Account to serve such time as the Debt is paid in fullpurpose.
(d) Borrower will use commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect on such Individual Continental Property or (v) any material relocation of the boundaries of the applicable Individual Continental Property.
(f) During the continuance of an Event of Default, Lender shall have the right, to the extent permitted under the Condominium Documents, but not the obligation, to cure any default by Borrower under the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Individual Property.
(g) Upon the occurrence and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all of the rights and privileges of Borrower. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium Charges.
(h) During the continuance of an Event of Default, Lender shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions of the Condominium Documents.
(i) Borrower shall not implement any Condominium regime at any Property without the prior written consent of Lender.
Appears in 1 contract
Condominium Covenants. (a) With respect Borrower shall cause each Mortgage Borrower that owns an Individual Property subject to a condominium regime to observe and perform each Condominium, Borrower covenants as follows:
(i) it will not, without Lender’s prior written consent, vote to amend, modify, supplement or terminate, or consent to (1) the termination of any of the Condominium Documents or (2) the amendment, modification or supplementation of any of the Condominium Documents, in each case, in any and every material respect which would cause a Material Adverse Effect on the applicable Individual Property;
(ii) it will pay (or cause term to be paid) all Condominium Charges and expenses actually assessed against, and payable by, those Units then owned observed or leased performed by it such Mortgage Borrower pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) prior in all material respects. Borrower shall cause such Mortgage Borrower to delinquency, other than assessments or Condominium Charges that are being contested in good faith pursuant to the applicable Condominium Documents and this Agreement;
(iii) it will comply in all material respects with all obligations under the applicable Security Instrument relating to the Condominium Documents and/or the condominium regime to which such Individual Property is subject to. Borrower shall obtain the approval of Lender for each matter requiring the terms, covenants and conditions on its part approval of Mortgage Lender under the provisions of such Security Instrument. Borrower shall cause such Mortgage Borrower to deliver to Lender copies of all notices required to be complied with, pursuant delivered by such Mortgage Borrower to Mortgage Lender under such Security Instrument.
(b) Borrower shall cause each Mortgage Borrower that owns an Individual Property subject to a condominium regime to promptly deliver to Lender a true and full copy of all written notices of default received by such Mortgage Borrower with respect to any obligation or duty of such Mortgage Borrower under the applicable Condominium Documents and any applicable Condominium Laws and rules and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to time, provided that the failure of the Condominium Board to be inactive Documents.
(c) Borrower shall not be a breach of this clause (iii) as long as such inactivity does not give rise permit any Mortgage Borrower that owns an Individual Property subject to a Material Adverse Effect on such Individual Property;
(iv) it will take all commercially reasonable actions as may be necessary from time to time to preserve and maintain the Condominium in accordance condominium regime to, except with the applicable Condominium Law; it will not, without the prior written consent of Lender, take (and hereby assigns to Lender any right it may have to take) any action to terminate the Condominiumwhich consent shall not be unreasonably withheld, withdraw the Condominium from the Condominium Law, conditioned or cause a partition of the Condominium;delayed,
(v) it will not, without Lender’s prior written consent, (A) vote to permit any of the terms or provisions of the Condominium Documents to be materially modified, supplemented or amended, including, without limitation, changing the boundaries of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights of Borrower to appoint members to the Condominium Board or permit the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Borrower has under the Condominium Documents;
(vi) for so long as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium and the Unit which Borrower owns, leases institute any action or otherwise occupies, proceeding for partition of such Individual Property; (b) vote for or consent to any material modification of, or amendment to or material relaxation in the extent in Borrower’s control, promptly repair, replace or rebuild any part enforcement of the applicable Condominium Documents or the termination of any condominium regime; and (c) in the Units event of damage to the extent benefitting the Unit ownedor destruction of such Individual Property, leased or otherwise used by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall vote not in such event vote to not repair, restore or rebuild such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased by the applicable Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; and
(A) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Individual Property if Mortgage Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation of have such association and appointment of board members, Borrower shall obtain resignation letters from each a voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default.
(b) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 7 hereof and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof to the extent permitted by applicable law and the Condominium Documents.
(c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts shall not permit any Mortgage Borrower that owns an Individual Property subject to obtain a condominium regime to revoke any proxy delivered to Lender in connection with the Loan and deliver relating to the Lender, any voting rights such Mortgage Borrower may have as a true and correct copy of unit owner in any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of themcondominium regime.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to To the extent that same is reasonably likely any approval rights, consent rights or other rights or privileges granted to cause a Material Adverse Effect on such Individual Continental Property or (v) any material relocation of the boundaries of lender in the applicable Individual Continental PropertyCondominium Documents are conditioned upon such approval rights, consent rights or other rights or privileges being required or contained in any mortgage, then such approval rights, consent rights or other rights or privileges shall be deemed to be required by this Agreement.
(f) During the continuance of an Event of Default, Lender shall have the right, With respect to the extent permitted under the Condominium Documents, but not the obligation, to cure any default by Borrower under the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Boston Common Individual Property.
(g) Upon , Borrower may permit Mortgage Borrower to convert the occurrence and continuance Boston Common Individual Property to a condominium form of an Event of Default, Lender may vote in place of Borrower and may exercise any and all of the rights and privileges of Borrower. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium Charges.
(h) During the continuance of an Event of Default, Lender shall have the right to participate in any arbitration proceeding instituted ownership in accordance with the terms and provisions of Section 54 of the Condominium Documents.Security Instrument relating to the Boston Common Individual Property so long as:
(iA) Mortgage Borrower complies with all of such terms and provisions to the satisfaction of Lender (such compliance as independently determined by Lender in its reasonable discretion), (B) Borrower obtains the approval of Lender for each matter requiring the approval of Mortgage Lender under the provisions of such Section 54 of the Security Instrument, and (C) Borrower causes such Mortgage Borrower to deliver to Lender copies of all notices, instruments and documents required to be delivered by such Mortgage Borrower to Mortgage Lender under such Section 54 of the Security Instrument;
(ii) Borrower complies with such additional requirements of Lender which are reasonably required by Lender to insure that the conversion of the Boston Common Individual Property will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents (including, without limitation, delivery of such documents as shall not implement any Condominium regime at any Property without the prior written consent reasonably be required by Lender, including opinions of counsel, UCC and title insurance, all in form and substance reasonably satisfactory to Lender); and
(iii) Lender shall have received payment of all of Lender’s reasonable costs and expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the conversion of the Boston Common Individual Property and the review and approval of the documents and information required to be delivered in connection therewith.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Archstone Smith Operating Trust)
Condominium Covenants. (a) With respect to each Condominium, Borrower covenants as follows:
(i) it will notnot permit Mortgage Borrower to, without Lender’s prior written consent, vote to amend, modify, supplement or terminate, or consent to (1) the termination of any of the Condominium Documents or (2) the amendment, modification or supplementation of any of the Condominium Documents, in each case, in any material respect which would cause a Material Adverse Effect on materially and adversely affect the applicable Mortgage Borrower, Borrower, Individual PropertyProperty and related Collateral, Mezzanine A Collateral and Mezzanine B Collateral and Lender’s rights under the Condominium Documents;
(ii) it will cause Mortgage Borrower to pay (or cause to be paid) all Condominium Common Charges and expenses actually assessed made against, and payable byor relating to, those Units then owned or leased by it pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, other than assessments or Condominium Common Charges that are being contested in good faith pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) and this Agreement. Borrower shall deliver (or cause to be delivered) to Lender, promptly upon Lender’s request, evidence satisfactory to Lender that the Common Charges have been so paid or are not then delinquent with respect to the Units owned or leased by Mortgage Borrower. Borrower shall immediately notify Lender of (i) any adjustments made to the amount of any amounts due under 00000000.0.XXXXXXXX the Condominium Documents and (ii) the imposition of any additional Common Charges or assessments under the Condominium Documents;
(iii) it will cause Mortgage Borrower to comply in all material respects with all of the terms, covenants and conditions on its part to be complied with, pursuant to the applicable Condominium Documents and any applicable Condominium Laws and rules and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to time, provided that the failure of the Condominium Board to be inactive shall not be a breach of this clause (iii) as long as such inactivity does not give rise to a Material Adverse Effect on such Individual Property;
(iv) it will cause Mortgage Borrower to take all commercially reasonable actions as may be necessary from time to time to preserve and maintain the Condominium in accordance with the applicable Condominium Law; it will not, permit Mortgage Borrower to, without the prior written consent of Lender, 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 Law, or cause a partition of the Condominium;
(v) it will notnot permit Mortgage Borrower to, without Lender’s prior written consent, (A) vote to permit any of the terms or provisions of the Condominium Documents to be materially modified, supplemented or amended, including, without limitation, changing the boundaries of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights of Mortgage Borrower to appoint members to the Condominium Board or permit the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Mortgage Borrower has under the Condominium Documents;
(vi) for so long as Borrower or Manager controls the Condominium Board, it shall cause Mortgage Borrower to use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium and the Unit which Mortgage Borrower owns, leases or otherwise occupies, (b) to the extent in Mortgage Borrower’s control, promptly repair, replace or rebuild any part of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Mortgage Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Mortgage Borrower shall not in such event vote to not repair, restore or rebuild such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased by the applicable Mortgage Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument Ground Lease, the related Mortgage or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; and
(A) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation of such association and appointment of board members, Borrower shall obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default.
(b) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 7 hereof and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof to the extent permitted by applicable law and the Condominium Documents.
(c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect on such Individual Continental Property or (v) any material relocation of the boundaries of the applicable Individual Continental Property.
(f) During the continuance of an Event of Default, Lender shall have the right, to the extent permitted under the Condominium Documents, but not the obligation, to cure any default by Borrower under the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Individual Property.
(g) Upon the occurrence and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all of the rights and privileges of Borrower. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium Charges.
(h) During the continuance of an Event of Default, Lender shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions of the Condominium Documents.
(i) Borrower shall not implement any Condominium regime at any Property without the prior written consent of Lender.costs
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Condominium Covenants. (a) With respect to each Condominium, Borrower covenants as follows:Borrowers shall perform in all material respects all of the obligations of the Unit owner under the Condominium Documents.
(ib) it will notBorrowers shall promptly pay, when due and payable all charges, dues and assessments imposed on the Unit owner under the Condominium Documents, including without Lender’s prior written consentlimitation, vote to amendany Common Charges. If Borrowers shall default in the performance or observance of any material term, modify, supplement covenant or terminate, or consent to (1) the termination condition of any of the Condominium Documents on the part of the Borrower owning the Unit to be performed or (2) observed, then, after the amendment, modification or supplementation expiration of any applicable notice and cure periods and without limiting the generality of the Condominium Documents, in each case, in any material respect which would cause a Material Adverse Effect on other provisions of the applicable Individual Property;
(ii) it will pay (or cause to be paid) all Condominium Charges and expenses actually assessed against, and payable by, those Units then owned or leased by it pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, other than assessments or Condominium Charges that are being contested in good faith pursuant to the applicable Condominium Documents Mortgage and this Agreement;
(iii) it will comply in all material respects with Agreement and without waiving or releasing Borrowers from any of their obligations hereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions on its part to be complied with, pursuant to the applicable Condominium Documents and any applicable Condominium Laws and rules and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to time, provided that the failure of the Condominium Board Documents on the part of the Borrower owning the Unit, to be inactive performed or observed or to be promptly performed or observed on behalf of Borrowers. Lender and any person designated as Lender’s agent by Lender shall not be a breach of this clause (iii) as long as such inactivity does not give rise have, and are hereby granted, the right to a Material Adverse Effect enter upon the Property at any reasonable time, on such Individual Property;
(iv) it will take all commercially reasonable actions as may be necessary notice and from time to time for the purpose of taking any such action. If Borrowers fail to preserve pay the Common Charges when due, Lender may pay the same and maintain such amounts shall be added to the Debt and shall bear interest at the Default Rate until paid. All sums so paid and expended by Lender and the interest thereon shall be secured by the Mortgage.
(c) Without Lender’s prior consent, not to be unreasonably withheld or delayed, no Borrower shall (i) modify, change, supplement, alter, amend in any material respect or terminate any of the Condominium Documents, (ii) waive or release any rights thereunder or (iii) consent to any material increase in accordance with its obligations thereunder. Borrowers hereby assign to Lender, as further security for the applicable payment of the Debt and for the performance and observance of the terms, covenants and conditions of the Mortgage and this Agreement, all of the rights, privileges and prerogatives of any Borrower, to modify, change, supplement, alter, amend or terminate any of the Condominium Law; it will notDocuments as provided above and any modification, change, supplement, alteration, amendment or termination of any of the Condominium Documents in violation of the foregoing without the prior written consent of LenderLender shall be void and of no force and effect. Borrowers may make any immaterial modification, take (and hereby assigns change, supplement, alteration, or amendment to Lender any right it may have to take) any action to terminate the Condominium, withdraw the Condominium from the Condominium LawDocuments without Lender’s consent unless such an immaterial modification, change, supplement, alteration, amendment would reasonably be expected to (A) materially adversely affect any Borrower or any Property, or cause a partition any Borrower’s business, properties, operations or condition, financial or otherwise, (B) adversely affect the rights of Lender to foreclose the Lien of the Condominium;
Mortgage or exercise its other rights under the Loan Documents or (vC) it will not, otherwise impair the Lien of the Mortgage. The Condominium shall not be terminated without Lender’s prior written consentconsent (whether as a result of a Casualty, Condemnation or otherwise). Notwithstanding anything to the contrary contained in this clause (c), Borrowers may obtain an amendment to the Quincy at Fourteenth Condominium Bylaws in the same form and substance attached hereto as Schedule X (the “Permitted Condo Amendment”), provided Lender shall have determined that each of the following conditions are satisfied: (A) vote to permit any no Event of the terms or provisions of the Condominium Documents to Default shall be materially modified, supplemented or amended, including, without limitation, changing the boundaries of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights of Borrower to appoint members to the Condominium Board or permit the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or continuing; (B) relinquish any rights that Borrower has under the Condominium Documents;
(vi) for so long as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium representations and warranties made by Borrowers and Guarantors in this Agreement and the Unit which Borrower owns, leases or otherwise occupies, (b) to the extent in Borrower’s control, promptly repair, replace or rebuild any part of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall not in such event vote to not repair, restore or rebuild such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action other Loan Documents with respect to the Condominium and/or shall remain true and correct in all material respects on and as of the Unit owned or leased date of such Permitted Condo Amendment; (C) to the extent the legal description attached to the applicable Mortgage, Assignment of Leases and the UCC financing statements (collectively, the “DC Recordable Documents”) reference the Condominium Documents, Borrower shall submit to Lender for its approval not less than twenty (20) days prior to the date of such Permitted Condo Amendment, (1) amendments to each of the DC Recordable Documents with a revised legal description reflecting the Permitted Condo Amendment, (2) (x) an ALTA 11-06 Endorsement (Mortgage Modification) and (y) a blank endorsement amending the applicable Title Insurance Policy so that its coverage shall relate to the date of recording of the amended Mortgage instead of the date of the Title Insurance Policy (the “Date Down Endorsement”), which endorsements shall be issued by the applicable Borrower title company that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, issued the related Security Instrument or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover Title Insurance Policy insuring the costs lien of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; and
(A) With the existing Mortgage with respect to the Silver Spring Square Condominium DC Property (“Existing Title Company”). The Date Down Endorsement shall confirm that the Mortgage, as amended, creates a valid first lien on the DC Property encumbered thereby, free and clear of all exceptions from coverage other than Permitted Encumbrances and standard exceptions and exclusions from coverage (as modified by the terms of any endorsements) substantially similar to those accepted by Lender in connection with the Title Insurance Policy for the existing Mortgage and (3) an Officer’s Certificate certifying that such documentation delivered pursuant to this clause (C) is in compliance with all Legal Requirements and all requirements of the Loan Documents; (D) Borrowers shall reimburse Lender and Servicer for costs and expenses incurred by Lender and Servicer in connection with such Permitted Condo Amendment and Borrower shall have paid, in connection with the execution and recording of the amended DC Recordable Documents, (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed all recording charges, filing fees, taxes or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender other expenses payable in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default connection therewith and (2) to an Servicer, the extent any voting member (including any officers or directorsthen current fee being assessed by such Servicer(s) to effect such execution and recordation of the related Condominium Board is appointed or selected amended DC Recordable Documents, not to exceed the fee customarily being assessed by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower Servicers to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Defaultborrowers for similar services; and (BE) with respect to the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower Borrowers shall provide deliver to Lender prompt notice thereof (1) a fully executed copy of the Permitted Condo Amendment within ten (10) days following the date of the Permitted Condo Amendment and in connection with Borrower’s activation (2) following recordation of the amended DC Recordable Documents, copies of such association and appointment of board members, Borrower shall obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default.
(b) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 7 hereof and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof to the extent permitted by applicable law and the Condominium Documents.
(c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in fullrecorded documents.
(d) Borrower will use commercially reasonable efforts to obtain In each and deliver to the Lenderevery case in which, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect on such Individual Continental Property or (v) any material relocation of the boundaries of the applicable Individual Continental Property.
(f) During the continuance of an Event of Default, Lender shall have the right, to the extent permitted under the Condominium Documents, but not the obligation, to cure any default by Borrower under the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Individual Property.
(g) Upon the occurrence and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all of the rights and privileges of Borrower. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium Charges.
(h) During the continuance of an Event of Default, Lender shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions of the Condominium Documents.
, the consent or the vote of the “Unit Owners” or Board of Directors (ias defined below) is required, no Borrower shall not implement vote or give such consent or allow the members on the Board of Directors appointed by such Borrower to vote or give such consent, in any Condominium regime at manner that could impair the Lien of any Property without Mortgage or the security therefor without, in each and every case, the prior written consent of Lender.
(e) Borrowers shall cause each of the members of the Board of Directors appointed by such Borrower to execute and deliver to Lender an undated conditional resignation (a “Conditional Resignation”) of each such member, whereby each such member tenders his/her resignation from the Board of Directors and instructs the Board of Directors that the successor members shall be designated by Lender, effective upon written notice from Lender to the Board of Directors that an Event of Default has occurred; it being understood and agreed to that such notice from the Lender shall be conclusive evidence that an Event of Default has occurred and the Board of Directors may rely on such notice from Lender without any further inquiry or investigation. Upon the occurrence of an Event of Default and the acceleration of the Loan, Lender may, by notice to Borrowers, tender any Conditional Resignation, now or hereafter delivered in connection with the Loan to the Board of Directors, whereupon the resignation of any such member shall become effective and successor members to the Board of Directors shall be designated by Lender.
(f) No Borrower shall remove or replace any of the members of the Board of Directors appointed by such Borrower without the prior consent of Lender, not to be unreasonably withheld or delayed; provided that such consent may be conditioned upon the delivery of a Conditional Resignation by such replacement member.
Appears in 1 contract
Samples: Loan Agreement (Generation Income Properties, Inc.)
Condominium Covenants. (a) With respect to each Condominium, Borrower covenants as follows:
(i) it will not, without LenderXxxxxx’s prior written consent, vote to amend, modify, supplement or terminate, or consent to (1) the termination of any of the Condominium Documents or (2) the amendment, modification or supplementation of any of the Condominium Documents, in each case, in any material respect which would cause a Material Adverse Effect on the applicable Individual Property;
(ii) it will pay (or cause to be paid) all Condominium Charges and expenses actually assessed against, and payable by, those Units then owned or leased by it pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, other than assessments or Condominium Charges that are being contested in good faith pursuant to the applicable Condominium Documents and this Agreement;
(iii) it will comply in all material respects with all of the terms, covenants and conditions on its part to be complied with, pursuant to the applicable Condominium Documents and any applicable Condominium Laws and rules and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to time, provided that the failure of the Condominium Board to be inactive shall not be a breach of this clause (iii) as long as such inactivity does not give rise to a Material Adverse Effect on such Individual Property;
(iv) it will take all commercially reasonable actions as may be necessary from time to time to preserve and maintain the Condominium in accordance with the applicable Condominium Law; it will not, without the prior written consent of Lender, 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 Law, or cause a partition of the Condominium;
(v) it will not, without LenderXxxxxx’s prior written consent, (A) vote to permit any of the terms or provisions of the Condominium Documents to be materially modified, supplemented or amended, including, without limitation, changing the boundaries of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights of Borrower to appoint members to the Condominium Board or permit the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Borrower has under the Condominium Documents;
(vi) for so long as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium and the Unit which Borrower owns, leases or otherwise occupies, (b) to the extent in Borrower’s control, promptly repair, replace or rebuild any part of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall not in such event vote to not repair, restore or rebuild such the Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased by the applicable Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that LenderXxxxxx’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; and
(Avii) With respect in the event that a Condominium becomes active and board members are appointed, Xxxxxxxx shall provide to the Silver Spring Square Condominium (1) it has obtained Lender prompt notice thereof and in connection with Xxxxxxxx’s activation of such association and appointment of board members, Xxxxxxxx shall obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation of such association and appointment of board members, Borrower shall obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender Xxxxxx in escrow and may, at LenderXxxxxx’s option, be submitted at any time after LenderXxxxxx’s acceleration of the Loan following an Event of Default.
(b) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 7 hereof and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof to the extent permitted by applicable law and the Condominium Documents.
(c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower Xxxxxxxx shall not vote to approve any of the following matters in connection with any the Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable any Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect on such Individual Continental Property or (v) any material relocation of the boundaries of the applicable Individual Continental Property.
(f) During the continuance of an Event of Default, Lender shall have the right, to the extent permitted under the Condominium Documents, but not the obligation, to cure any default by Borrower under the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Individual Property.
(g) Upon the occurrence and continuance of an Event of Default, Lender may vote in place of Borrower Xxxxxxxx and may exercise any and all of the rights and privileges of Borrower. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as BorrowerXxxxxxxx’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium Charges.
(h) During the continuance of an Event of Default, Lender shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions of the Condominium Documents.
(i) Borrower shall not implement any Condominium regime at any Property without the prior written consent of Lender.
Appears in 1 contract
Samples: Loan Agreement (SITE Centers Corp.)
Condominium Covenants. (a) With respect to each Condominium, Borrower covenants as follows:shall perform all of the obligations of the Unit owner under the Condominium Documents.
(ib) it will notBorrower shall promptly pay, when due and payable all charges, dues and assessments imposed on the Unit owner under the Condominium Documents, including without Lender’s prior written consentlimitation, vote to amendany Common Charges. If Borrower shall default in the performance or observance of any material term, modify, supplement covenant or terminate, or consent to (1) the termination condition of any of the Condominium Documents on the part of Borrower to be performed or (2) observed, then, after the amendment, modification or supplementation expiration of any applicable notice and cure periods and without limiting the generality of the Condominium Documents, in each case, in any material respect which would cause a Material Adverse Effect on other provisions of the applicable Individual Property;
(ii) it will pay (or cause to be paid) all Condominium Charges and expenses actually assessed against, and payable by, those Units then owned or leased by it pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, other than assessments or Condominium Charges that are being contested in good faith pursuant to the applicable Condominium Documents Mortgage and this Agreement;
(iii) it will comply in all material respects with Agreement and without waiving or releasing Borrower from any of its obligations hereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions on its part to be complied with, pursuant to the applicable Condominium Documents and any applicable Condominium Laws and rules and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to time, provided that the failure of the Condominium Board Documents on the part of Borrower, to be inactive performed or observed or to be promptly performed or observed on behalf of Borrower. Lender and any person designated as Lender’s agent by Lender shall not be a breach of this clause (iii) as long as such inactivity does not give rise have, and are hereby granted, the right to a Material Adverse Effect enter upon the Property at any reasonable time, on such Individual Property;
(iv) it will take all commercially reasonable actions as may be necessary notice and from time to time for the purpose of taking any such action. If Borrower fails to preserve pay the Common Charges before the same are delinquent, Lender may pay the same and maintain the Condominium in accordance with the applicable Condominium Law; it will not, without the prior written consent of Lender, 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 Law, or cause a partition of the Condominium;
(v) it will not, without Lender’s prior written consent, (A) vote to permit any of the terms or provisions of the Condominium Documents to such amounts shall be materially modified, supplemented or amended, including, without limitation, changing the boundaries of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights of Borrower to appoint members added to the Condominium Board or permit Debt and shall bear interest at the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Borrower has under the Condominium Documents;
(vi) for Default Rate until paid. All sums so long as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium paid and expended by Lender and the Unit which Borrower owns, leases or otherwise occupies, (b) to the extent in Borrower’s control, promptly repair, replace or rebuild any part of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used interest thereon shall be secured by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall not in such event vote to not repair, restore or rebuild such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased by the applicable Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; and
(A) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation of such association and appointment of board members, Borrower shall obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default.
(b) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 7 hereof and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof to the extent permitted by applicable law and the Condominium DocumentsMortgage.
(c) Lender Without Lender’s prior consent, not to be unreasonably withheld or delayed, Borrower shall have the rightnot (i) modify, subject to change, supplement, alter, amend in any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records material respect or terminate any of the Condominium Documents, (ii) waive or release any rights thereunder or (iii) consent to any material increase in its obligations thereunder. Borrower hereby assigns to Lender, as provided in further security for the payment of the Debt and for the performance and observance of the terms, covenants and conditions of the Mortgage and this Agreement, all of the rights, privileges and prerogatives of Borrower, to modify, change, supplement, alter, amend or terminate any of the Condominium Documents until as provided above and any modification, change, supplement, alteration, amendment or termination of any of the Condominium Documents in violation of the foregoing without the prior consent of Lender shall be void and of no force and effect. Borrower may make any immaterial modification, change, supplement, alteration, or amendment to the Condominium Documents without Lender’s consent unless such time as an immaterial modification, change, supplement, alteration, amendment could reasonably be expected to (A) adversely affect Borrower or the Debt is paid in fullProperty, or Borrower’s business, properties, operations or condition, financial or otherwise, (B) adversely affect the rights of Lender to foreclose the Lien of the Mortgage or exercise its other rights under the Loan Documents or (C) otherwise impair the Lien of the Mortgage.
(d) Borrower will use commercially reasonable efforts to obtain In each and deliver to the Lenderevery case in which, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect on such Individual Continental Property or (v) any material relocation of the boundaries of the applicable Individual Continental Property.
(f) During the continuance of an Event of Default, Lender shall have the right, to the extent permitted under the Condominium Documents, but not the obligation, to cure any default by Borrower under the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Individual Property.
(g) Upon the occurrence and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all of the rights and privileges of Borrower. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium Charges.
(h) During the continuance of an Event of Default, Lender shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions of the Condominium Documents.
, the consent or the vote of the “Unit Owners” or Board of Directors (ias defined below) is required, Borrower shall not implement vote or give such consent or allow the members on the Board of Directors appointed by Borrower to vote or give such consent, in any Condominium regime at manner that could impair the Lien of any Property without Mortgage or the security therefor without, in each and every case, the prior written consent of Lender.
(e) Borrower shall cause each of the members of the Board of Directors appointed by Borrower to execute and deliver to Lender an undated conditional resignation (a “Conditional Resignation”) of each such member, whereby each such member tenders his/her resignation from the Board of Directors and instructs the Board of Directors that the successor members shall be designated by Lender, effective upon written notice from Lender to the Board of Directors that an Event of Default has occurred; it being understood and agreed to that such notice from the Lender shall be conclusive evidence that an Event of Default has occurred and the Board of Directors may rely on such notice from Lender without any further inquiry or investigation. Upon the occurrence of an Event of Default and the acceleration of the Loan, Lender may, by notice to Borrower, tender any Conditional Resignation, now or hereafter delivered in connection with the Loan to the Board of Directors, whereupon the resignation of any such member shall become effective and successor members to the Board of Directors shall be designated by Lender.
(f) Borrower will not remove or replace any of the members of the Board of Directors appointed by Borrower without the prior consent of Lender, not to be unreasonably withheld or delayed; provided that such consent may be conditioned upon the delivery of a Conditional Resignation by such replacement member.
Appears in 1 contract
Samples: Loan Agreement (Carter Validus Mission Critical REIT, Inc.)
Condominium Covenants. (a) Obligor shall promptly pay all common charges and special assessments or actual expenses imposed upon the Premises pursuant to the Condominium Documents when the same become due and payable. Obligor shall deliver to Agent, promptly upon Agent’s request, evidence satisfactory to Agent that such common charges and special assessments have been so paid or are not then delinquent.
(b) After request by Agent, Obligor shall promptly request from the Condominium Board and the Association and upon receipt deliver to Agent an estoppel certificate which shall include without limitation (i) the amount of the unpaid common charges, if any, accrued against the Premises, (ii) that the Condominium Documents have not been modified or amended, (iii) that all payments due and payable by Obligor under the Condominium Documents have been paid in full, and (iv) that none of Obligor, the Association or the Condominium Board is in default under the Condominium Documents. Unless an Event of Default has occurred and is continuing, Obligor shall not be required to deliver an estoppel certificate from the Condominium Board and the Association more than once every twelve (12) months.
(c) Obligor shall promptly deliver to Agent a true and full copy of all notices of default received by Obligor with respect to any obligation or duty of Obligor under the Condominium Documents. In the event that Obligor shall fail to cure any default after notice thereof from the Association, the Condominium Board or Agent, Agent may, at its option, but without any obligation to do so, cure such default of Obligor. Agent may pay for the account and on behalf of Obligor any amount which Obligor is obligated to pay, including any common charges, special assessments or any other assessment or charge of any kind or nature, pursuant to the Condominium Documents, upon default by Obligor, in paying the same, and Agent may perform any act, employ any person or entity, and cast any vote on behalf of Obligor which Obligor may or is obligated to do pursuant to the Condominium Documents upon default by Obligor in doing the same. All sums paid by Agent for the expense of any such action or proceeding shall be paid by Obligor to Agent upon Agent’s demand. Nothing contained herein shall obligate Agent or Lenders to pay any sums or perform any acts on behalf of Obligor. Furthermore, if Agent pays such amounts or performs such acts on behalf of Obligor, the same shall not constitute a waiver or forgiveness by Agent of Obligor’s default under this Agreement or any estoppel against Agent from declaring Obligor in default hereunder.
(d) Not less than fifteen (15) days prior to the date established for any vote by the Association, Obligor shall notify Agent of: (1) any proposed amendment, supplement or termination or relaxation of enforcement of the Condominium Declaration or the other Condominium Documents, (2) any proposed action to be taken relating to any condemnation or casualty affecting the Property (or any restoration thereof), including, without limitation, the appointment of any Insurance Trustee (as defined in the Condominium Declaration), (3) any exercise of any development right of Obligor reserved in the Condominium Declaration, (4) the appointment of any third-party manager to run the Association or (5) any other proposed material action of the Association. With respect to the foregoing matters, Obligor will not give its consent or vote or take any other action permitted to be taken by Obligor under the Condominium Declaration or waive any rights, without in each Condominium, Borrower covenants as follows:case the prior written consent of Agent.
(ie) Within five (5) days after receipt thereof, Obligor shall furnish Agent with copies of all minutes or resolutions of the Condominium Board, proposed or approved, all notices and any and all other written material sent or furnished to it will notby the Condominium Board.
(f) Obligor shall observe, without Lender’s prior written consentperform, vote to amendand discharge in all material respects all obligations, modifycovenants, supplement or terminate, or consent to (1) and warranties provided for under the termination of any terms of the Condominium Documents to be kept, observed, and performed by Obligor. Obligor shall keep the Condominium Documents in full force and effect.
(g) Without Agent’s prior consent, Obligor shall not (or allow the members on the Condominium Board appointed by Obligor to vote or give consent to) (2i) the amendmenttake or omit to take any action to modify, modification change, supplement, alter, amend or supplementation of terminate any of the Condominium Documents, (ii) waive or release any of Obligor’s rights under the Condominium Documents, (iii) vote, give consent or waive any right of Obligor if, the result of such vote or consent would be to impair the rights of Agent or Lenders or the Lien of the Mortgage, (iv) approve (x) any borrowing of money on behalf of the Condominium which would result in each casethe creation of any Lien on any portion of the Premises or (y) any material addition to, or material alteration or improvement of, the Common Elements (as defined in the Condominium Documents), (v) fail to maintain or diminish in any material respect which would cause a Material Adverse Effect on the applicable Individual Property;
(ii) it will pay (or cause to be paid) all insurance policies maintained by the Condominium Charges and expenses actually assessed against, and payable by, those Units then owned or leased by it pursuant to the applicable Condominium Documents or otherwise in effect on the Closing Date or (vi) appoint or Ground Lease, if applicable) prior to delinquency, other than assessments or Condominium Charges that are being contested in good faith pursuant to the applicable Condominium Documents and this Agreement;
(iii) it will comply in all material respects with all of the terms, covenants and conditions on its part to be complied with, pursuant to the applicable Condominium Documents and remove any applicable Condominium Laws and rules and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to time, provided that the failure member of the Condominium Board to be inactive shall not be a breach of this clause (iii) as long as such inactivity does not give rise to a Material Adverse Effect on such Individual Property;
(iv) it will take all commercially reasonable actions as may be necessary from time to time to preserve and maintain the Condominium in accordance with the applicable Condominium Law; it will not, without the prior written consent of Lender, 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 Law, or cause a partition of the Condominium;
(v) it will not, without Lender’s prior written consent, (A) vote to permit any of the terms or provisions of the Condominium Documents to be materially modified, supplemented or amended, including, without limitation, changing the boundaries of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights of Borrower to appoint members to the Condominium Board or permit the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Borrower has under the Condominium Documents;
(vi) for so long as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium and the Unit which Borrower owns, leases or otherwise occupies, (b) to the extent in Borrower’s control, promptly repair, replace or rebuild any part of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall not in such event vote to not repair, restore or rebuild such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased by the applicable Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; and
(A) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation of such association and appointment of board members, Borrower shall obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default.
(bh) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 7 hereof and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof to the extent permitted by applicable law and the Condominium Documents.
(c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect on such Individual Continental Property or (v) any material relocation of the boundaries of the applicable Individual Continental Property.
(f) During the continuance of an Event of Default, Lender Agent shall have the right, to the fullest extent permitted of Obligor’s rights under the Condominium Documents, but not to examine the obligation, to cure any default by Borrower under books of account of the Condominium Documents and to attend meetings of owners of the extent Condominium Board, but the foregoing shall not require Agent to examine said books of account or attend any such default could reasonably be expected to have a Material Adverse Effect on the Individual Propertymeetings.
(gi) Upon Agent’s request, Obligor shall cause each of the members of the Condominium Board appointed by Obligor to execute and deliver to Agent an undated conditional resignation (a “Conditional Resignation”) of each such member, whereby each such member tenders his/her resignation from the Condominium Board and instructs the Condominium Board that the successor members shall be designated by Agent, effective upon written notice from Agent to the Condominium Board that an Event of Default has occurred and be continuing; it being understood and agreed to that such notice from Agent shall be conclusive evidence that an Event of Default has occurred and is continuing and the Condominium Board may rely on such notice from Agent without any further inquiry or investigation. Upon the occurrence and continuance of an Event of Default, Lender may vote Agent may, by notice to Obligor, tender any Conditional Resignation, now or hereafter delivered in place of Borrower and may exercise any and all of connection with the rights and privileges of Borrower. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contraryCondominium Board, nothing contained herein or otherwise whereupon the resignation of any such member shall render Lender liable for any become effective and successor members to the Condominium ChargesBoard shall be designated by Agent.
(hj) During At any time, during the continuance existence of an Event of Default, Lender shall have Agent may give notice to the Condominium Board or any other Person stating that circumstances exist which entitle Agent to exercise in Obligor’s place any particular right, privilege or power, or to receive any credit, refund, profit or other sum of money which Obligor has the right to participate in any arbitration proceeding instituted in accordance with the provisions of exercise or receive under the Condominium Documents; it being understood and agreed to that such notice from Agent shall be conclusive evidence that an Event of Default shall have occurred and be continuing and the Condominium Board may rely on such notice from Agent without any further inquiry or investigation.
(i) Borrower shall not implement any Condominium regime at any Property without the prior written consent of Lender.
Appears in 1 contract
Condominium Covenants. (a) With respect to each Condominium, Borrower covenants as follows:
shall (i) it will notperform all of its obligations under the Condominium Documents, without Lender’s prior written consentexcept where the failure to do so would not reasonably be expected to have a Material Adverse Effect and (ii) subject to its right to contest, vote to amendif any, modifyunder the Condominium Documents, supplement pay, when due and payable, all Condominium Charges.
(b) If Borrower shall default in the performance or terminateobservance of any term, covenant or consent to (1) the termination condition of any of the Condominium Documents on the part of Borrower to be performed or (2) observed and the amendment, modification or supplementation of any of the Condominium Documents, in each case, in any material respect which same would cause reasonably be expected to have a Material Adverse Effect on Effect, then, after the expiration of any applicable Individual Property;
(ii) it will pay (or cause to be paid) all Condominium Charges notice and expenses actually assessed against, cure periods provided for herein and payable by, those Units then owned or leased by it pursuant to without limiting the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, generality of the other than assessments or Condominium Charges that are being contested in good faith pursuant to provisions of the applicable Condominium Documents Mortgage and this Agreement;
(iii) it will comply in all material respects with Agreement and without waiving or releasing Borrower from any of its obligations hereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of the Condominium Documents on its the part of Borrower, to be complied with, pursuant performed or observed or to the applicable Condominium Documents be promptly performed or observed on behalf of Borrower. Lender and any applicable Condominium Laws person designated as Lender’s agent by Lender shall have, and rules are hereby granted, the right to enter upon the Property at any reasonable time, upon reasonable notice and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to timetime for the purpose of taking any such action, provided that and any such amounts so paid by Lender, and the failure reasonable out-of-pocket cost of such actions by Lender, shall be reimbursed by Borrower within five (5) Business Days of written notice to Borrower from Lender and if not so reimbursed shall be added to the Debt and shall bear interest at the Default Rate until reimbursed.
(c) Without Lender’s prior consent (which shall not be unreasonably withheld, conditioned or delayed), Borrower shall not vote at any meeting of owners of Units or permit its representatives on the Condominium Board to be inactive shall not be vote, or take any action whatsoever, respecting (i) any material modification, change, supplement, alteration or amendment to any of the Condominium Documents, (ii) the removal of a breach of this clause Unit from the Condominium, (iii) as long as such inactivity does not give rise any partition of all or a part of the property subject to a Material Adverse Effect on such Individual Property;
the Condominium Declaration, (iv) it will take all commercially reasonable actions as may be necessary from time to time to preserve and maintain any waiver or release of any material rights of Borrower under the Condominium Documents or any material increase in accordance with the applicable Condominium Law; it will notobligations of Borrower thereunder, without the prior written consent of Lender, 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 Law, or cause a partition of the Condominium;
(v) it will not, without Lender’s prior written consent, (A) vote to permit any adverse change in the nature of or decrease in the amount of any insurance covering all or a part of the terms Property and/or the Common Elements and the disposition of any proceeds thereof which would cause a violation of this Agreement or provisions of the Condominium Documents to be materially modified, supplemented or amendedother Loan Documents, including, without limitation, changing resulting in any failure to satisfy any of the boundaries requirements set forth in Section 5.1 hereof, (vi) the disposition of any Unitexcess insurance or Condemnation proceeds, changing (vii) a response to or action upon any ownership percentage interest Casualty, Condemnation, Material Alteration or vote allocated any other matter which requires Lender’s approval hereunder or the other Loan Documents or is, in each case, prohibited hereunder or the other Loan Documents unless Borrower satisfies the relevant conditions under the Loan Documents applicable to the matter for which Lender’s approval is required hereunder or the other Loan Documents, or (viii) the assessment or levy of any special assessment.
(d) Borrower shall not take (or cause to be taken) any action under the Condominium Documents that would be reasonably expected to result in the Mortgage not being “Permitted Mortgage” and/or Lender not being a Unit or changing any rights “Permitted Mortgagee” of the Property within the meaning of the Condominium Declaration.
(e) Subject to and in accordance with the terms and conditions of the Condominium Proxy, Borrower has appointed Lender as Borrower’s true and lawful attorney and proxy to vote, consent and otherwise act, on behalf of Borrower to appoint members to the Condominium Board or permit the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Borrower has under the Condominium Documents;
(vi) for so long , as Borrower or Manager controls a unit owner with respect to Borrower’s ownership of the Units, at all annual, special, and other meetings of the unit owners of the Condominium Board(or by written consent in lieu thereof) and at any other time Borrower is required to vote, it shall use commercially reasonable efforts consent or act as a unit owner, including without limitation, the right to cause designate, remove, or replace the members and officers of the Condominium Board that Borrower is entitled to (a) promptly comply with all Legal Requirements applicable designate, remove or replace. Prior to the Condominium and the Unit which Borrower owns, leases or otherwise occupies, (b) to the extent in Borrower’s control, promptly repair, replace or rebuild any part occurrence of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall not in such event vote to not repair, restore or rebuild such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased by the applicable Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; and
(A) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to , Lender’s rights under the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower Proxy shall provide to Lender prompt notice thereof and only be exercised in connection with Borrower’s activation (i) any amendment or modification to a material term or provision of such association and appointment the Condominium Documents which would reasonably be expected to have a Material Adverse Effect, (ii) any casualty and/or condemnation at the Property (including, without limitation, pursuant to Section 6.3.4 of board members, the Bylaws and/or (iii) any vote to withdraw the Property from the provisions of the Condominium Act of the State of New York or any termination of the Condominium Documents. Borrower shall obtain resignation letters from each voting member of the related not revoke any Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of Proxy so long as the Loan following an Event of Defaultis outstanding.
(bf) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) the owner of condominium units in the Condominium or any of them, Units which comprise the Property (i) irrevocably waives, to the extent permitted by law and the Condominium Documentslaw, any applicable law which grants to the trustees trustees, members or the board of directors managers of the Condominium Board and/or the owners and/or lessee(s) of the condominium units rights to Net Proceeds derived from the Condominium Unit(s) owned by Borrower in the event of a casualty Casualty or a condemnation Condemnation which are inconsistent with the provisions of Article 7 hereof this Agreement and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards Net Proceeds related to the Condominium Unit(s) owned by Borrower in accordance with Article 7 hereof the provisions of this Agreement.
(g) On the Closing Date, Borrower shall (or shall cause each member of the Condominium Board appointed by Borrower to) execute and deliver to Lender an undated conditional resignation (a “Conditional Resignation”), whereby Borrower (or the members of the Condominium Board appointed by Borrower) tenders its resignations from the Condominium Board and instructs the Condominium Board that the successor members shall be designated by Lender, effective upon written notice from Lender to the extent permitted by applicable law Condominium Board that an Event of Default has occurred and is continuing; it being understood and agreed that such notice from the Lender shall be conclusive evidence that an Event of Default has occurred and is continuing and the Condominium Documents.
(c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which Board may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect rely on such Individual Continental Property notice from Lender without any further inquiry or (v) any material relocation of investigation. Upon the boundaries of the applicable Individual Continental Property.
(f) During the continuance occurrence of an Event of Default, Lender shall have may, by notice to Borrower, tender any Conditional Resignation, now or hereafter delivered in connection with the right, Loan to the extent permitted under Condominium Board, whereupon the resignation of any such member shall become effective and successor members to the Condominium DocumentsBoard shall be designated by Lender for so long as an Event of Default is continuing, but not provided that upon the obligation, to waiver or cure any default which is accepted by Borrower under Lender of the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Individual Property.
(g) Upon the occurrence and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all the members of the rights Condominium Board appointed by Lender shall immediately resign from the Condominium Board and privileges the members of Borrowerthe Condominium Board appointed by Borrower shall be reinstated. Borrower hereby irrevocably appoints Upon the release of any Condominium Unit from the Lien of the Mortgage, Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act shall promptly return any Conditional Resignation with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium ChargesBoard member applicable to such Condominium Unit to Borrower and any such member appointed by Lender shall immediately resign from the Condominium Board.
(h) During In the continuance event of an Event any removal or resignation of Default, Lender shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions a member of the Condominium DocumentsBoard appointed by Borrower, Borrower shall promptly appoint a successor member to the Condominium Board who is either (i) approved in writing by Lender (such approval not to be unreasonably withheld, conditioned or delayed) or (ii) a Person employed or Controlled by ALX, VRT, VRLP or any of their respective subsidiaries, and concurrently with such successor’s appointment to the Condominium Board, Borrower shall deliver to Lender a Conditional Resignation executed by such successor member.
(i) Borrower shall not implement any will do all things reasonably necessary to preserve and to keep unimpaired its material rights, powers and privileges under the Condominium regime at any Documents and to prevent the termination or expiration of the Condominium Documents, or the withdrawal of the Property without from a condominium form of ownership under applicable law, to the prior written consent end that Borrower may enjoy all of Lenderthe material rights granted to it as a party to the Condominium Documents.
Appears in 1 contract
Samples: Loan Agreement (Alexanders Inc)
Condominium Covenants. (a) With respect to each Condominium, Borrower covenants as follows:
(i) it will notnot permit Mortgage Borrower to, without Lender’s prior written consent, vote to amend, modify, supplement or terminate, or consent to (1) the termination of any of the Condominium Documents or (2) the amendment, modification or supplementation of any of the Condominium Documents, in each case, in any material respect which would cause a Material Adverse Effect on materially and adversely affect the applicable Mortgage Borrower, Borrower, Individual PropertyProperty and related Collateral and Lender’s rights under the Condominium Documents;
(ii) it will cause Mortgage Borrower to pay (or cause to be paid) all Condominium Common Charges and expenses actually assessed made against, and payable byor relating to, those Units then owned or leased by it pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, other than assessments or Condominium Common Charges that are being contested in good faith pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) and this Agreement. Borrower shall deliver (or cause to be delivered) to Lender, promptly upon Lender’s request, evidence satisfactory to Lender that the Common Charges have been so paid or are not then delinquent with respect to the Units owned or leased by Mortgage Borrower. Borrower shall immediately notify Lender of (i) any adjustments made to the amount of any amounts due under the Condominium Documents and (ii) the imposition of any additional Common Charges or assessments under the Condominium Documents;
(iii) it will cause Mortgage Borrower to comply in all material respects with all of the terms, covenants and conditions on its part to be complied with, pursuant to the applicable Condominium Documents and any applicable Condominium Laws and rules and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to time, provided that the failure of the Condominium Board to be inactive shall not be a breach of this clause (iii) as long as such inactivity does not give rise to a Material Adverse Effect on such Individual Property;
(iv) it will take all commercially reasonable actions as may be necessary from time to time to preserve and maintain the Condominium in accordance with the applicable Condominium Law; it will not, without the prior written consent of Lender, 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 Law, or cause a partition of the Condominium;
(v) it will not, without Lender’s prior written consent, (A) vote to permit any of the terms or provisions of the Condominium Documents to be materially modified, supplemented or amended, including, without limitation, changing the boundaries of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights of Borrower to appoint members to the Condominium Board or permit the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Borrower has under the Condominium Documents;
(vi) for so long as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium and the Unit which Borrower owns, leases or otherwise occupies, (b) to the extent in Borrower’s control, promptly repair, replace or rebuild any part of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall not in such event vote to not repair, restore or rebuild such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased by the applicable Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; and
(A) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation of such association and appointment of board members, Borrower shall obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default.
(b) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 7 hereof and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof to the extent permitted by applicable law and the Condominium Documents.
(c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect on such Individual Continental Property or (v) any material relocation of the boundaries of the applicable Individual Continental Property.
(f) During the continuance of an Event of Default, Lender shall have the right, to the extent permitted under the Condominium Documents, but not the obligation, to cure any default by Borrower under the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Individual Property.
(g) Upon the occurrence and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all of the rights and privileges of Borrower. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium Charges.
(h) During the continuance of an Event of Default, Lender shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions of the Condominium Documents.
(i) Borrower shall not implement any Condominium regime at any Property without the prior written consent of Lender.the
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Condominium Covenants. (a) With respect to each Condominium, Borrower covenants as follows:
(i) it will notBorrower shall pay all Condominium Assessments, without Lender’s prior written consentas and when the same become due and payable, vote subject to amend, modify, supplement or terminate, or consent any right of Borrower to (1) contest same in accordance with the termination of any provisions of the Condominium Documents and provided that Borrower shall exercise any such right if and only if: (i) such proceeding suspends the collection of such Condominium Assessments and the Property will not be in danger of being sold for such unpaid Condominium Assessments, or Borrower has paid all of such Condominium Assessments under protest, (2ii) such proceeding is permitted under and is conducted in accordance with the amendment, modification or supplementation of any provisions of the Condominium Documents, (iii) if Borrower has not paid the disputed amounts in each casefull under protest, Borrower shall deposit with Lender cash (or other security as may be approved, in writing, by Lender) in an amount Lender deems sufficient to insure the payment of any material respect such Condominium Assessments together with interest and penalties thereon, if any, provided that after a Securitization, one hundred twenty-five percent (125%) of the contested amount (plus anticipated penalty and interest) shall be deposited with Lender, (iv) Borrower furnishes to Lender all other items reasonably requested by Lender and (v) upon a final determination thereof, Borrower promptly pays the amount of any such Condominium Assessments, together with all costs, interest and penalties which would cause a Material Adverse Effect on the applicable Individual Property;may be payable in connection therewith.
(ii) it will pay In addition to the financial reporting requirements of Section 5.1.11 hereof Borrower shall furnish the following to Lender, each prepared in such detail as reasonably required by Lender and certified by a Responsible Officer to be true, complete and correct: as soon as available, but in any event within forty-five (45) days after the end of each fiscal quarter, evidence satisfactory to Lender that all Condominium Assessments for the immediately preceding quarter which are then due and payable for an Individual Property, have been paid by Borrower (or cause to be paid) all Condominium Charges and expenses actually assessed against, and payable by, those Units then owned or leased by it pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, other than assessments or Condominium Charges that are being duly and properly contested in good faith pursuant accordance with Section (a)(1) above) which evidence shall include, without limitation, a true and correct photocopy of Borrower’s cancelled check(s) evidencing such payment(s) with respect to such Individual Property provided, however, in lieu of furnishing such evidence to Lender, Borrower shall have the applicable right to deposit cash with Lender in the full annual amount of such Condominium Documents and Assessments due with respect to such Individual Property, which deposit shall be held by Lender as additional security for the Loan until such time as satisfactory evidence of such payment in accordance with this Agreement;clause is accepted by Lender.
(iii) Borrower shall observe and enforce all obligations imposed upon it will comply in all material respects with all of under the Condominium Documents and shall enforce the terms, covenants and conditions on its part contained in the Condominium Documents to be complied with, pursuant to observed or performed upon the applicable Condominium Documents and any applicable Condominium Laws and rules and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to time, provided that the failure part of the Condominium Board to be inactive shall not be other parties thereunder in a breach of this clause (iii) as long as such inactivity does not give rise to a Material Adverse Effect on such Individual Property;commercially reasonable manner.
(iv) it will Borrower shall not alter, modify or change the material terms of, nor terminate, any of the Condominium Documents without Lender’s consent (which consent shall not be unreasonably withheld, conditioned or delayed).
(v) Borrower shall comply with any such state, local or federal law, rule and regulation applicable to the condominium regime at the Property, the Land or the sale or transfer of the Land, including but not limited to, the securities and condominium laws of the State where the Property is located and the rules and regulations pertaining thereto.
(vi) Borrower shall take all commercially reasonable actions as may be necessary from time to time to preserve and maintain the Condominium condominium regime at the Property in accordance with the applicable Condominium Law; it will notlaws of the State where the Property is located.
(vii) Provided that the same was not included in any of the reports, without the prior written consent of statements, certificates or other documentation submitted to Lender, take Borrower shall give Lender prompt notice of any special assessment relating to the condominium regime received by Borrower.
(viii) Borrower shall provide Lender with notice of any proposed additions, alterations or improvements proposed by any Condominium Board costing in excess of $50,000 and hereby assigns to Lender any right it may have to take) any action to terminate the Condominium, withdraw provided that Borrower or its designee has consent rights under the Condominium from the Condominium LawDocuments, or cause a partition of the Condominium;
(v) it will not, Borrower shall not consent to same without Lender’s prior written consentapproval, (A) vote to permit any of the terms or provisions of the Condominium Documents not to be materially modified, supplemented or amended, including, without limitation, changing the boundaries of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights of Borrower to appoint members to the Condominium Board or permit the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Borrower has under the Condominium Documents;unreasonably withheld.
(viix) for so long as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium and the Unit which Borrower owns, leases or otherwise occupies, (b) to the extent in Borrower’s control, promptly repair, replace or rebuild any part of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Borrower shall not in such event vote promptly deliver to not repair, restore Lender a true and complete copy of each and every notice of default received or rebuild such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for delivered by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased by the applicable any obligation of Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; and
(A) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation of such association and appointment of board members, Borrower shall obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default.
(b) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 7 hereof and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof to the extent permitted by applicable law and party under the Condominium Documents.
(cx) Lender shall have the rightIf an Event of Default has occurred and is continuing, Borrower hereby acknowledges and agrees that, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; Documents, Lender (ivor its nominee) the creation of, shall be solely entitled to remove any Condominium Board members appointed by Borrower and/or to designate replacement or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made substitute members of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect on such Individual Continental Property or (v) any material relocation of the boundaries of the applicable Individual Continental Property.
(f) During the continuance of Condominium Board. If an Event of Default, Lender shall have the right, to the extent permitted under the Condominium Documents, but not the obligation, to cure any default by Borrower under the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Individual Property.
(g) Upon the occurrence Default has occurred and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all of the rights and privileges of Borrower. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Condominium Charges.
(h) During the continuance of an Event of Defaultis continuing, Lender shall have the right to participate exercise the power of attorney granted pursuant to the Proxy (as hereinafter defined) to exercise all rights, powers and remedies of Borrower pursuant to the Condominium Documents. The rights granted to Lender under the Proxy shall automatically terminate upon the payment of the Loan in any arbitration proceeding instituted full or upon a defeasance of the Loan in accordance with the provisions terms hereof.
(xi) If an Event of Default has occurred and is continuing, Lender may, at its option, and Borrower hereby grants and assigns to Lender, from and after the occurrence and during the continuation of an Event of Default, the right, either by itself or by its nominee or designee, in the name of Borrower, to exercise the rights, powers and remedies of Borrower pursuant to the Condominium Documents. Such rights and remedies shall include, without limitation, the right to exercise all voting, consent, managerial and other rights relating to the Condominium, whether in Borrower’s name or otherwise, and the right to exercise Borrower’s rights in the Condominium, including, without limitation, voting to elect members of the Condominium Board and voting to amend the Condominium Documents.
(i) Borrower shall not implement any Condominium regime at any Property without the prior written consent of Lender.
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Condominium Covenants. (a) With respect Borrower shall pay all Assessments as and when due and payable. Borrower shall deliver to each CondominiumLender, within five (5) after Lender’s written request therefor, evidence satisfactory to Lender that the Assessments have been timely paid. Borrower covenants as follows:shall immediately notify Lender if the Assessments are increased, or if special or extraordinary Assessments are imposed.
(b) Borrower shall observe and perform, and shall cause the members of the Condominium Board appointed by Borrower to observe and perform, the provisions of the Condominium Documents. Borrower (i) it will notshall not take, without Lender’s prior written consent, or vote to amendtake, modify, supplement or terminateand shall restrict any member of the Condominium Board appointed by Borrower from taking, or consent voting to (1) take, any action with respect to the termination Condominium and/or the Units that would contravene, breach or violate the provisions of any of the Condominium Documents or (2) the amendment, modification or supplementation of any of the Condominium Loan Documents, in each case, in any material respect which would cause a Material Adverse Effect on the applicable Individual Property;
and (ii) it will pay (or cause to be paid) all Condominium Charges and expenses actually assessed againstshall, and payable by, those Units then owned or leased by it pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, other than assessments or Condominium Charges that are being contested in good faith pursuant to the applicable Condominium Documents and this Agreement;
(iii) it will comply in all material respects with all of the terms, covenants and conditions on its part to be complied with, pursuant to the applicable Condominium Documents and any applicable Condominium Laws and rules and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to time, provided that the failure cause each member of the Condominium Board to be inactive shall not be a breach of this clause (iii) as long as such inactivity does not give rise to a Material Adverse Effect on such Individual Property;
(iv) it will take all commercially reasonable actions as may be necessary from time to time to preserve and maintain the Condominium in accordance with the applicable Condominium Law; it will not, without the prior written consent of Lender, 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 Law, or cause a partition of the Condominium;
(v) it will not, without Lender’s prior written consentthat was appointed by Borrower to, (A) vote to permit any of in a manner consistent with the terms or provisions of the Condominium Documents Loan Documents, (B) intentionally omitted, (C) obtain Lender’s prior written consent prior to be materially modified, supplemented or amended, including, without limitation, changing the boundaries of any Unit, changing any ownership percentage interest or vote allocated voting to a Unit or changing any rights of Borrower to appoint members to permit the Condominium Board or permit the Owner’s Association to establish any significant working capital or similar reserves or undertaking any significant capital expenditures, (D) vote to maintain the Condominium in good condition and repair, to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Borrower has under the Condominium Documents;
(vi) for so long as Borrower or Manager controls the Condominium Board, it shall use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium and the Unit which Borrower ownsCondominium, leases or otherwise occupies, (b) to the extent in Borrower’s control, promptly repair, replace or rebuild any part of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by the Borrower which may be damaged or destroyed by any fire or other casualty or which may be affected by any eminent domain or condemnation proceeding and Borrower shall not in such event vote to not repair, restore or rebuild such Condominium without the prior written consent of Lender, (c) promptly complete and pay for, within a reasonable time, for any structure at any time in the process of construction or repair on at the Condominium. If any part of the Condominium is damaged or destroyed by fire or other casualty or is affected by any eminent domain or condemnation proceeding, unless otherwise approved by Lender, Borrower shall, and shall cause each member of the Units Condominium Board appointed by Borrower to, vote in favor of repairing, restoring or rebuilding the Condominium.
(c) Borrower shall not object to allowing (and shall vote to allow) and shall cause each member of the Condominium Board appointed by Borrower to vote to allow, Lender to examine the books, records and receipts of the Condominium upon five (5) days prior written notice of such examination.
(d) Within five (5) days after Borrower’s receipt thereof, Borrower shall deliver to Lender:
(i) a copy of the most recent annual budget for the Condominium received by Borrower, and (ii) a copy of the most recent annual budget for the Condominium, and (iii) a copy of each and every notice of default by Borrower received from the Owner’s Association or any member of the Condominium Board. Furthermore, Borrower shall provide prior written notice to Lender of all material matters requiring the vote or consent of the unit owners of the Condominium within five (5) days after obtaining knowledge thereof. Each such delivery shall be accompanied by an Officer’s Certificate which certifies that the information delivered is true, correct and complete.
(e) To the extent required that any approval rights, consent rights or other rights or privileges are granted to be completed or paid for by Borrower under a mortgagee of record in the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased by the applicable Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Security Instrument or any other Loan Documentmortgagee protection provisions are contained in the Condominium Documents, (e) refrain from establishing significant working capital reserves then such approval rights, consent rights or other similar reserves rights, protections or privileges shall be deemed to undertake significant capital expenditures be required by this Agreement and are incorporated herein by this reference. Furthermore, Borrower shall not, and shall not permit any member of the Condominium Board appointed by Borrower to, exercise any material approval, consent or voting rights to which it is entitled under the Condominium Documents without obtaining Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs of repairs, alterations or other work otherwise permitted hereunder and (f) refrain from creating any new Units or selling any Units; and
(A) With respect to the Silver Spring Square Condominium (1) it has obtained resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower, which resignation letters are attached hereto as Exhibit H and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of the related Condominium Board is appointed or selected by Borrower after the Closing Date, it shall obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit H from each voting member of such Condominium Board appointed by or selected by Borrower and any officers of the Silver Spring Square Condominium appointed by Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default; and (B) with respect to the Seabrook Condominium, in the event that the Seabrook Condominium becomes active and board members are appointed, Borrower shall provide to Lender prompt notice thereof and in connection with Borrower’s activation of such association and appointment of board members, Borrower shall obtain resignation letters from each voting member of the related Condominium Board appointed or selected by Borrower and any officers of the Seabrook Condominium appointed by Borrower, which resignation letters shall be in form and substance reasonably acceptable to Lender and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after Lender’s acceleration of the Loan following an Event of Default.
(b) The provisions of Article 7 hereof shall apply to the entirety of any Individual Continental Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Continental Property to applicable Condominium Law. Without limiting the generality of the foregoing, Borrower, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 7 hereof and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 7 hereof to the extent permitted by applicable law and the Condominium Documents.
(c) Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d) Borrower will use commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of material default or other material notice given to Borrower in respect of the observance of the Condominium Documents or any of them.
(e) Without the prior written consent of the Lender, Borrower shall not vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Continental Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances in each event to the extent that same is reasonably likely to cause a Material Adverse Effect on such Individual Continental Property or (v) any material relocation of the boundaries of the applicable Individual Continental Property.
(f) During Unless otherwise approved by Lender, Borrower shall not, and shall not permit any member of the continuance Condominium Board appointed by Borrower to, vote in favor of an Event the Condominium or the Owner’s Association incurring any Indebtedness.
(g) Borrower shall attend each duly called meeting or special meeting of Default, Lender the Owner’s Association.
(h) Lender’s prior written consent shall have the right, be required for any alterations to the extent permitted under Improvements if Borrower is required to obtain the consent or approval of the Owner’s Association or the Condominium Board for any such alterations pursuant to the Condominium Documents. The foregoing is in addition to, but and not in limitation of, the obligationprovisions set forth in Section 5.1.21 of this Agreement.
(i) In the event that material improvements to the common areas and facilities of the Condominium (as opposed to ordinary repairs and replacements of existing improvements in the ordinary course) are proposed:
(i) Borrower shall notify Lender of such proposed material improvements within five (5) days after obtaining knowledge thereof; (ii) Lender may, at its option, exercise all rights, options and voting rights accruing to cure any default by Borrower under the Condominium Documents and applicable Legal Requirements relating to such proposed improvements to the extent such default could reasonably be expected to have a Material Adverse Effect on common areas and facilities (the Individual Property.
(g“Improvement Rights”) Upon in the occurrence place and continuance of an Event of Default, Lender may vote in place of Borrower and may exercise any and all of the rights and privileges stead of Borrower. ; (iii) in order to effectuate the foregoing, Borrower hereby irrevocably appoints Lender as its Borrower’s attorney-in-factfact to so act with respect to said rights, which appointment as attorney-in-fact is hereby coupled with an interest; (iv) written notice from Lender of its election to exercise the Improvement Rights in each event to the Owner’s Association and to Borrower is to be deemed conclusive evidence as to Lender’s right to exercise the Improvement Rights; and (v) Borrower shall pay all amounts required by the Condominium Documents with respect to such proposed improvements as and when due. Lender may, without any obligation or liability, pay such amounts to Borrower or directly to the Owner’s Association for such proposed improvements, and the same shall be secured by this Security Instrument and the other Loan Documents. Any such advances shall bear interest at the Default Rate until repaid to Lender and Borrower shall execute, acknowledge, deliver and record, at Borrower’s expense, any documents as Lender may require evidencing such advances and securing repayment thereof to Lender by Borrower.
(j) With respect to any matters concerning the: (i) election of members of the Condominium Board, (ii) approval of any budget or amended or supplementary budget for the Condominium, or (iii) the selection of a manager or execution of a management contract, Lender may elect to vote in place and stead of Borrower with respect to all such matters. In order to effectuate the foregoing, Borrower hereby irrevocably appoints Lender as Borrower’s proxy and attorney-in-fact to so act with respect to all of said rights so long right to vote, which appointment as such Event of Default continues hereunder or under any other Loan Documentsattorney-in-fact is hereby coupled with an interest. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for voting, and in no circumstance shall Lender be liable or responsible for the payment of any Condominium ChargesAssessments.
(h) During the continuance of an Event of Default, Lender shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions of the Condominium Documents.
(i) Borrower shall not implement any Condominium regime at any Property without the prior written consent of Lender.
Appears in 1 contract
