REA. The Borrower hereby covenants and agrees with Lender with respect to the REA as follows: (a) Borrower shall pay all charges and other sums to be paid by Borrower pursuant to the terms of the REA as the same shall become due and payable and prior to the expiration of any applicable grace period therein provided. After prior notice to Lender, Borrower, at its own cost and expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any charges required to be paid by Borrower pursuant to the REA; provided that (i) no Default or Event of Default has occurred and remains outstanding; (ii) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Security Instrument; (iii) such proceeding shall be permitted under and be conducted in accordance with the provisions of the REA and any other instrument to which Borrower is subject or by which the Property is bound and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable Legal Requirements; (iv) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (v) the REA will not be in danger of being terminated; (vi) Borrower shall promptly upon final determination thereof pay the amount of any such charges, together with all interest and penalties which may be payable in connection therewith; (vii) such proceeding shall suspend the collection of such charges from Borrower and the Property; (viii) Borrower shall furnish such cash or other security as may be required in the proceeding or as may be required by Lender to ensure the payment of any such charges, together with all interest and penalties thereon; and (ix) such contest by Borrower is not in violation of the Leases. Lender may pay over, assign or transfer any such security or part thereof to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established or the Property (or any part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, canceled or lost or there shall be any danger of the Lien of the Security Instrument being primed by any related Lien. (b) Borrower shall perform and observe all of the terms, covenants and conditions required to be performed and observed by Borrower pursuant to terms of the REA. (c) Borrower shall take all actions as may be necessary from time to time to preserve and maintain the REA in accordance with all applicable Legal Requirements. (d) Borrower shall enforce, in a commercially reasonably manner, the terms, covenants and conditions to be performed and observed by the parties to the REA (other than Borrower). (e) Borrower shall promptly furnish to Lender any notice of default or other communication delivered in connection with the REA by any party to the REA or any third-party (other than routine correspondences and invoices). (f) If Lender or its nominee, designee, successor, or assignee acquires title and/or rights of Borrower under the REA by reason of foreclosure of the Security Instrument, deed-in-lieu of foreclosure or otherwise, Lender or such other party shall (i) succeed to all of the rights of and benefits accruing to Borrower under the REA, and (ii) be entitled to exercise all of the rights and benefits accruing to Borrower under the REA. At such time as Lender shall request, Borrower agrees to execute and deliver to Lender such documents as Lender and its counsel may require in order to ensure that the provisions of this Section 4.1.24(f) will be validly and legally enforceable and effective against Borrower and all parties claiming by, through, under or against Borrower.
Appears in 1 contract
REA. The Borrower hereby covenants and agrees with Lender with respect to the REA as follows:
(a) To the extent of Borrower’s rights to approve or authorize the same, Borrower shall not, without Lender’s prior written consent, amend, modify or supplement, or consent to the amendment, modification or supplementation of the REA except that Lender shall not unreasonably withhold, condition or delay its consent to any amendment or modification which will not have a material adverse effect on the use, value or operation of the Property or Borrower’s ability to pay the Monthly Debt Service Payment Amount including the payment due on the Maturity Date and as to any such amendment, modification or supplementation so consented to by Lender, Lender shall subordinate the provisions of the Loan Documents thereto in form and substance reasonably acceptable to Borrower and Lender;
(b) Borrower shall pay all charges and other sums to be paid by Borrower pursuant to the terms of the REA as the same shall become due and payable and prior to the expiration of any applicable grace period therein provided. After prior written notice to Lender, Borrower, at its own cost and expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any charges required to be paid by Borrower pursuant to the REA; , provided that (i) no Default or Event of Default has occurred and remains outstandinguncured; (ii) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Security Instrument; (iii) such proceeding shall be permitted under and be conducted in accordance with the provisions of the REA and any other instrument to which Borrower is subject or by which the Property is bound and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable Legal Requirementsstatutes, laws and ordinances in all material respects; (iviii) neither the Property nor any and no part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (viv) the REA will not be in danger of being terminated; (viv) Borrower shall promptly upon final determination thereof pay the amount of any such charges, together with all costs, interest and penalties which may be payable in connection therewith; (viivi) such proceeding shall suspend the collection of such charges from Borrower and the Property; and (viiivii) Borrower shall furnish such cash or other security security, if and as may be reasonably required in the proceeding or as may be required by Lender to ensure insure the payment of any such charges, together with all interest and penalties thereon; and (ix) such contest by Borrower is not in violation of the Leases. Lender may pay over, assign or transfer any such security or part thereof to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established or the Property (or any part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, canceled or lost or there shall be any danger of the Lien of the Security Instrument being primed by any related Lien.;
(bc) Borrower shall perform and observe comply in all material respects with all of the terms, covenants and conditions required on the Borrower’s part to be performed and observed by Borrower complied with pursuant to terms of the REA.REA subject to any applicable grace period therein provided;
(cd) Borrower shall take all actions as may be necessary from time to time to preserve and maintain the REA in accordance with all applicable Legal Requirements.REA;
(de) Borrower shall not, without the prior written consent of Lender, as determined in its sole discretion, take (and hereby assigns to Lender any right it may have to take) any action to terminate, surrender, or accept any termination or surrender of, the REA;
(f) Borrower shall enforce, in a commercially reasonably mannermanner and subject to the terms of the REA, the terms, covenants and conditions obligations to be performed and observed by the parties to the REA (other than Borrower).;
(eg) Borrower shall promptly furnish to Lender any written notice of default or other written communication delivered in connection with the REA by any party to the REA or any third-party to Borrower and/or Manager other than routine correspondence and invoices;
(h) Borrower shall not assign (other than routine correspondences and invoices).to Lender) or encumber its rights under the REA;
(fi) If Lender or Lender, its nominee, designee, successor, or assignee acquires title and/or rights of Borrower under the REA by reason of foreclosure of the Security InstrumentMortgage, deed-in-lieu of foreclosure or otherwise, Lender or such other party shall (i) succeed to all of the rights of and benefits accruing to Borrower under the REA, and (ii) be entitled to exercise all of the rights and benefits accruing to Borrower under the REA. At such time as Lender shall request, Borrower agrees to execute and deliver to Lender such documents as Lender and its counsel may reasonably require in order to ensure insure that the provisions of this Section 4.1.24(f) section will be validly and legally enforceable and effective against Borrower and all parties claiming by, through, under or against Borrower; and
(j) If any individuals are appointed or designated by, or on behalf of, Borrower to act as members of the Owner’s Committee (or any successor committee created pursuant to the REA) or to otherwise act in any capacity as officers and/or representatives of such Owner’s Committee, Borrower shall within ten (10) Business Days of such appointment or designation deliver to Lender an Owner’s Committee Proxy and Assignment of Membership in Owner’s Committee substantially in the form delivered to Lender by Borrower on the date hereof with respect to each such individual.
Appears in 1 contract
REA. The Borrower hereby covenants shall, at Agent's request, provided that the Condominium Conversion shall not have already occurred, execute, deliver and agrees with Lender with respect to the REA as follows:
record a Declaration of Rights and Reciprocal Easements (a) Borrower shall pay all charges and other sums to be paid by Borrower pursuant to the terms of the REA as the same shall become due and payable and prior may be amended, restated, supplemented or otherwise modified from time to the expiration of any applicable grace period therein provided. After prior notice to Lender, Borrower, at its own cost and expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any charges required to be paid by Borrower pursuant to the REA; provided that (i) no Default or Event of Default has occurred and remains outstanding; (ii) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Security Instrument; (iii) such proceeding shall be permitted under and be conducted time in accordance with the provisions terms hereof, the "REA"), in form and substance satisfactory to Agent, within thirty (30) days after an Event of Default shall have occurred relating to a monetary Default or any other material Default including, without limitation, failure of Borrower to proceed with the construction of the REA and any other instrument to which Borrower is subject or by which the Property is bound and shall not constitute a default thereunder and such proceeding shall be conducted Improvements in accordance with all applicable Legal Requirements; the terms of this Agreement. The REA shall provide for, inter alia, (i) cross easements between the two parcels comprising the Property, (ii) allocation of responsibilities for construction, maintenance, support and operations, including, without limitation, utilities, for such parcels and the improvements to be located thereon, as between such parcels and the respective owner of each such parcel, (iii) the respective rights and obligations of the owners of such parcels to build and restore the Improvements, (iv) neither the Property nor respective rights and obligations of the owners of such parcels in the event of a Casualty or Condemnation, including, without limitation, the obligations to restore and the rights to any part thereof Net Proceeds or interest therein will be in danger of being soldAward, forfeited, terminated, cancelled or lost; and (v) the rights and remedies of an owner to perform the obligations of the other owner if the other owner fails to do so, including the rights to lien the other owner's property. In the event that the REA shall not have been duly executed and delivered and properly recorded in the City Register's Office, New York County, prior to the commencement of a foreclosure proceeding against the Property or prior to the filing of any bankruptcy proceeding (voluntary or involuntary) against either Commercial Owner or Residential Owner, Borrower agrees that it will not adopt a foreclosure or bankruptcy strategy or interpose defenses (including, without limitation, any defenses that the assets of Borrower must be in danger marshaled) which would oppose or contravene or otherwise interfere with the foreclosure of being terminated; (vi) Borrower shall promptly upon final determination thereof pay the amount of any such charges, together with all interest and penalties which may be payable in connection therewith; (vii) such proceeding shall suspend the collection of such charges from Borrower and the Property; (viii) Borrower shall furnish such cash or other security as may be required in the proceeding or as may be required by Lender to ensure the payment of any such charges, together with all interest and penalties thereon; and (ix) such contest by Borrower is not in violation of the Leases. Lender may pay over, assign or transfer any such security or part thereof to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established or both parcels comprising the Property (or any part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, canceled or lost or there shall be any danger of the Lien of the Security Instrument being primed by any related Lien.
(b) Borrower shall perform and observe all of the terms, covenants and conditions required to be performed and observed by Borrower pursuant to terms of the REA.
(c) Borrower shall take all actions as may be necessary from time to time to preserve and maintain the REA in accordance with all applicable Legal Requirements.
(d) Borrower shall enforce, simultaneously in a commercially reasonably manner, the terms, covenants and conditions to be performed and observed single sale as though both such parcels were but a single parcel owned by the parties to the REA (other than Borrower).
(e) one owner. Borrower shall promptly furnish to Lender any notice of default or other communication delivered acknowledges in connection with the REA by any party foregoing that Agent and Lenders (A) have entered into this Agreement and the other Loan Agreements and Lenders have agreed to make the REA or any third-party Loan in reliance on their ability to treat the Property for collateral purposes as though it were a single parcel, (other than routine correspondences and invoices).
(fB) If Lender or its nominee, designee, successor, or assignee acquires title and/or rights of Borrower under the REA by reason of foreclosure would not have made a loan against either parcel independently of the Security Instrument, deed-in-lieu of foreclosure or otherwise, Lender or such other party shall and (iC) succeed to all are permitting the continued subdivision of the rights Property as two parcels with separate ownership in each Borrower merely to accommodate Borrower's tax and organizational needs. In furtherance of and benefits accruing to Borrower under the REAforegoing, and (ii) be entitled in consideration for Lenders agreeing to exercise all of make the rights and benefits accruing to Borrower under the REA. At such time as Lender shall requestLoan, each Borrower agrees to execute include a provision in its Organizational Documents that if either Borrower is involved in a bankruptcy proceeding (voluntary or involuntary), at the request of Agent, the other Borrower will file a voluntary petition in bankruptcy and deliver to Lender support Agent in seeking on behalf of Lenders or will itself seek on its own behalf procedural consolidation of both proceedings, and such documents as Lender provision may not be amended or modified without the consent of Agent (and its counsel may require in order to ensure that the provisions of this Section 4.1.24(f) will be validly and legally enforceable and effective against Borrower and all parties claiming by, through, under or against Borrowerexpressly so provide).
Appears in 1 contract
REA. The Borrower hereby covenants and agrees with Lender with respect to the REA as follows:
(a) Borrower shall pay all charges and other sums to be paid by Borrower pursuant to the terms of the REA as the same shall become due and payable and prior to the expiration of any applicable grace period therein provided. After prior notice to Lender, Borrower, at its own cost and expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any charges required to be paid by Borrower pursuant to the REA; provided that (i) no Default or Event of Default has occurred and remains outstanding; (ii) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Security Instrument; (iii) such proceeding shall be permitted under and be conducted in accordance with the provisions of the REA and any other instrument to which Borrower is subject or by which the Property is bound and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable Legal Requirements; (iv) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (v) the REA will not be in danger of being terminated; (vi) Borrower shall promptly upon final determination thereof pay the amount of any such charges, together with all interest and penalties which may be payable in connection therewith; (vii) such proceeding shall suspend the collection of such charges from Borrower and the Property; (viii) Borrower shall furnish such cash or other security as may be required in the proceeding or as may be required by Lender to ensure the payment of any such charges, together with all interest and penalties thereon; and (ix) such contest by Borrower is not in violation of the Leases. Lender may pay over, assign or transfer any such security or part thereof to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established or the Property (or any part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, canceled or lost or there shall be any danger of the Lien of the Security Instrument being primed by any related Lien.
(b) Borrower shall perform and observe (or cause Tenant to perform and observe) all of the terms, covenants and conditions required to be performed and observed by Borrower pursuant to the terms of the REA.
(c) Borrower shall take all actions as may be necessary from time to time to preserve and maintain the REA in accordance with all applicable Legal Requirements.
(d) Borrower shall enforce, in a commercially reasonably mannermanner and in all material respects, the terms, covenants and conditions to be performed and observed by the parties to the REA (other than Borrower).
(e) Borrower shall promptly furnish to Lender any written notice of default or other communication delivered in connection with the REA by any party to the REA or any third-party third‑party (other than routine correspondences and invoices).
(f) If Lender or its nominee, designee, successor, or assignee acquires title and/or rights of Borrower under the REA by reason of foreclosure of the Security Instrument, deed-in-lieu deed‑in‑lieu of foreclosure or otherwise, Lender or such other party shall (i) succeed to all of the rights of and benefits accruing to Borrower under the REA, and (ii) be entitled to exercise all of the rights and benefits accruing to Borrower under the REA. At such time as Lender shall request, Borrower agrees to execute and deliver to Lender such documents as Lender and its counsel may require in order to ensure that the provisions of this Section 4.1.24(f) will be validly and legally enforceable and effective against Borrower and all parties claiming by, through, under or against Borrower.
Appears in 1 contract
REA. The Borrower hereby covenants and agrees with Lender with respect to the REA as follows:
(a) Borrower shall pay all charges and other sums to be paid by Borrower pursuant to the terms of the REA as the same shall become due and payable and prior to the expiration of any applicable grace period therein provided. After prior notice to Lender, Borrower, at its own cost and expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any charges required to be paid by Borrower pursuant to the REA; provided that (i) no Default or Event of Default has occurred and remains outstanding; (ii) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Security Instrument; (iii) such proceeding shall be permitted under and be conducted in accordance with the provisions of the REA and any other instrument to which Borrower is subject or by which the Property is bound and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable Legal Requirements; (iv) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (v) the REA will not be in danger of being terminated; (vi) Borrower shall promptly upon final determination thereof pay the amount of any such charges, together with all interest and penalties which may be payable in connection therewith; (vii) such proceeding shall suspend the collection of such charges from Borrower and the Property; (viii) Borrower shall furnish such cash or other security as may be required in the proceeding or as may be required by Lender to ensure the payment of any such charges, together with all interest and penalties thereon; and (ix) such contest by Borrower is not in violation of the Leases. Lender may pay over, assign or transfer any such security or part thereof to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established or the Property (or any part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, canceled or lost or there shall be any danger of the Lien of the Security Instrument being primed by any related Lien.
(b) Borrower shall perform and observe (or cause Tenant to perform and observe) all of the terms, covenants and conditions required to be performed and observed by Borrower pursuant to the terms of the REA.
(c) Borrower shall take all actions as may be necessary from time to time to preserve and maintain the REA in accordance with all applicable Legal Requirements.
(d) Borrower shall enforce, in a commercially reasonably mannermanner and in all material respects, the terms, covenants and conditions to be performed and observed by the parties to the REA (other than Borrower).
(e) Borrower shall promptly furnish to Lender any written notice of default or other communication delivered in connection with the REA by any party to the REA or any third-party (other than routine correspondences and invoices).
(f) If Lender or its nominee, designee, successor, or assignee acquires title and/or rights of Borrower under the REA by reason of foreclosure of the Security Instrument, deed-in-lieu of foreclosure or otherwise, Lender or such other party shall (i) succeed to all of the rights of and benefits accruing to Borrower under the REA, and (ii) be entitled to exercise all of the rights and benefits accruing to Borrower under the REA. At such time as Lender shall request, Borrower agrees to execute and deliver to Lender such documents as Lender and its counsel may require in order to ensure that the provisions of this Section 4.1.24(f) will be validly and legally enforceable and effective against Borrower and all parties claiming by, through, under or against Borrower.
(g) Notwithstanding anything to the contrary contained in this Agreement, it is acknowledged and agreed that Lender’s consent shall not be required in connection with the REA Amendment, provided that each of the following conditions is satisfied:
(i) No Event of Default has occurred and is continuing;
(ii) The REA Amendment is in the form previously approved by Lender in writing prior to the Closing Date, a copy of which is attached hereto as Schedule 4.1.24;
(iii) Borrower shall provide to Lender a copy of the fully executed and recorded REA Amendment within ten (10) Business Days of the recording of such REA Amendment in the appropriate county records of San Diego County, California;
(iv) Borrower shall, at its sole cost and expense, (x) have executed, acknowledged and delivered to Lender an amendment to the applicable Loan Documents, which amendment shall be reasonably acceptable to Lender in all respects, updating the legal description attached thereto to incorporate such REA Amendment (collectively, the “Loan Documents Amendment”) and cause each such Loan Documents Amendment to be recorded in the appropriate county records of San Diego County, California, and (y) deliver to Lender an endorsement to the Title Insurance Policy insuring (A) against the invalidity or unenforceability of the lien of the Security Instrument as a result of any Loan Documents Amendment, (B) that the Lien of the Security Instrument continues to be a first priority lien on the Property, subject to no exceptions other than Permitted Encumbrances and such REA Amendment, and (C) amending the legal description of the insured estate in the Title Insurance Policy to include such REA Amendment; and
(v) All reasonable out-of-pocket costs and expenses incurred by Lender in connection with any matter arising under this Section 4.1.24(g) shall be paid by Borrower.
Appears in 1 contract
REA. The Borrower hereby covenants and agrees with Lender with respect to the REA as follows:
(a) Borrower shall pay all charges and other sums to be paid by Borrower pursuant to the terms of the REA as the same shall become due and payable and prior to the expiration of any applicable grace period therein provided. After prior notice to Lender, Borrower, at its own cost and expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any charges required to be paid by Borrower pursuant to the REA; provided that (i) no Default or Event of Default has occurred and remains outstanding; (ii) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Security Instrument; (iii) such proceeding shall be permitted under and be conducted in accordance with the provisions of the REA and any other instrument to which Borrower is subject or by which the Property is bound and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable Legal Requirements; (iv) neither the Property nor any part thereof or interest therein will reasonably be in danger of being sold, forfeited, terminated, cancelled or lost; (v) the REA will not reasonably be in danger of being terminated; (vi) Borrower shall promptly upon final determination thereof pay the amount of any such charges, together with all interest and penalties which may be payable in connection therewith; (vii) such proceeding shall suspend the collection of such charges from Borrower and the Property; (viii) Borrower shall furnish such cash or other security as may be required in the proceeding or as may be reasonably required by Lender to ensure the payment of any such charges, together with all interest and penalties thereon; and (ix) such contest by Borrower is not in violation of the Leases. Lender may pay over, assign or transfer any such security or part thereof to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established or the Property (or any part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, canceled or lost or there shall be any danger of the Lien of the Security Instrument being primed by any related Lien.
(b) Borrower shall perform and observe all of the terms, covenants and conditions required to be performed and observed by Borrower pursuant to terms of the REA.
(c) Borrower shall take all actions as may be necessary from time to time to preserve and maintain the REA in accordance with all applicable Legal Requirements.
(d) Borrower shall enforce, in a commercially reasonably reasonable manner, the terms, covenants and conditions to be performed and observed by the parties to the REA (other than Borrower).
(e) Borrower shall promptly furnish to Lender any written notice of default or other written communication delivered by or received by Borrower in connection with the REA by any party to the REA or any third-party (other than routine correspondences and invoices).
(f) If Lender or its nominee, designee, successor, or assignee acquires title and/or rights of Borrower under the REA by reason of foreclosure of the Security Instrument, deed-in-lieu of foreclosure or otherwise, Lender or such other party shall (i) succeed to all of the rights of and benefits accruing to Borrower under the REA, and (ii) be entitled to exercise all of the rights and benefits accruing to Borrower under the REA. At such time as Lender shall request, Borrower agrees to execute and deliver to Lender such documents as Lender and its counsel may reasonably require in order to ensure that the provisions of this Section 4.1.24(f) will be validly and legally enforceable and effective against Borrower and all parties claiming by, through, under or against Borrower.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital - Retail Centers of America, Inc.)
