TO THE EXTENT NOT CONTAINED IN THE CONDO
DOCUMENTS, REASONABLE AND CUSTOMARY EASEMENTS ARE IN PLACE BETWEEN THE
RESIDENTIAL UNIT AND THE RETAIL UNIT OR THERE IS AN AGREEMENT BETWEEN SUCH UNIT
OWNERS TO PUT SUCH EASEMENTS IN PLACE FROM TIME TO TIME AS NEEDED.
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2.
REPRESENTATIONS AND WARRANTIES.
BORROWER HEREBY REPRESENTS,
WARRANTS, COVENANTS, ACKNOWLEDGES AND AGREES THAT:
2.1
FULL FORCE AND EFFECT.
THE LOAN AGREEMENT, THE NOTES, THE
MORTGAGES AND THE OTHER LOAN DOCUMENTS, EACH AS MODIFIED BY THIS MODIFICATION,
ARE IN FULL FORCE AND EFFECT.
2.2
BORROWER OBLIGATIONS; ESTOPPEL.
ALL OBLIGATIONS OF BORROWER TO
LENDER UNDER THE LOAN DOCUMENTS, EACH AS MODIFIED BY THIS MODIFICATION,
CONSTITUTE THE VALID AND BINDING OBLIGATIONS OF BORROWER IN ACCORDANCE WITH THE
TERMS OF THE LOAN DOCUMENTS, EACH AS MODIFIED BY THIS MODIFICATION, WITHOUT ANY
OFFSET, DEFENSE, CLAIM OR COUNTERCLAIM OF ANY NATURE WHATSOEVER. THE UNPAID
PRINCIPAL AMOUNT OF THE LOAN IS $270,202,717.32, AND INTEREST ON SUCH PRINCIPAL
SUM HAS BEEN PAID THROUGH SEPTEMBER 30, 2013
2.3
BORROWER AUTHORITY.
BORROWER HAS FULL POWER, AUTHORITY AND
LEGAL RIGHT TO EXECUTE THIS MODIFICATION AND TO MANAGE, GRANT, BARGAIN, SELL,
PLEDGE, ASSIGN, WARRANT, TRANSFER AND CONVEY THE PROPERTY PURSUANT TO THE TERMS
OF THE LOAN DOCUMENTS, EACH AS MODIFIED BY THIS MODIFICATION, AND TO KEEP AND
OBSERVE ALL OF THE TERMS OF THE LOAN DOCUMENTS, EACH AS MODIFIED BY THIS
MODIFICATION, ON BORROWER'S PART TO BE PERFORMED.
2.4
NO EVENT OF DEFAULT.
NO EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING UNDER THE LOAN AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
2.5
RESIDENTIAL UNIT OWNER.
THE RESIDENTIAL UNIT OWNER IS NOT A
SUBSIDIARY OF BORROWER.
2.6
TAX LOTS.
EACH OF THE RESIDENTIAL UNIT AND RETAIL UNIT
CONSTITUTE SEPARATE TAX LOTS, AND THE RETAIL UNIT DOES NOT CONSTITUTE A PORTION
OF ANY OTHER TAX LOT THAT IS NOT PART OF THE PROPERTY.
2.7
ZONING COMPLIANCE.
THE RETAIL UNIT IS AND SHALL AT ALL TIMES
BE IN COMPLIANCE IN ALL MATERIAL RESPECTS WITH ALL APPLICABLE ZONING AND
BUILDING CODES, REGULATIONS AND ALL OTHER LEGAL REQUIREMENTS.
3.
GUARANTY DOCUMENTS.
TO EVIDENCE ITS ACKNOWLEDGMENT AND
AGREEMENT TO THE TERMS OF THIS MODIFICATION, CONTEMPORANEOUSLY HEREWITH
GUARANTOR SHALL EXECUTE AND DELIVER THE RATIFICATION OF GUARANTOR ANNEXED HERETO
AS EXHIBIT E.
4.
EFFECT OF THIS MODIFICATION.
IT IS EXPRESSLY UNDERSTOOD AND
AGREED THAT THIS MODIFICATION IS GIVEN FOR THE PURPOSE OF MODIFYING THE TERMS,
PROVISIONS, COVENANTS AND CONDITIONS OF THE LOAN AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
NO PART OF THE INDEBTEDNESS EVIDENCED BY THE NOTES AND SECURED BY
THE MORTGAGES, SHALL BE DISTURBED, DISCHARGED, CANCELLED OR IMPAIRED BY THE
EXECUTION OF THIS MODIFICATION, IT BEING THE INTENTION OF THE PARTIES HERETO
THAT THIS MODIFICATION SHALL NOT CREATE ANY NEW OR FURTHER
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PRINCIPAL INDEBTEDNESS OTHER THAN THE PRINCIPAL INDEBTEDNESS SECURED BY, OR
WHICH UNDER ANY CONTINGENCY MAY BECOME SECURED BY, THE MORTGAGES.
5.
MISCELLANEOUS PROVISIONS.
5.1
GOVERNING LAW.
THE PLACE OF NEGOTIATION, EXECUTION AND
DELIVERY OF THIS MODIFICATION IS THE STATE OF NEW YORK.
THIS MODIFICATION SHALL
BE