AND COURT COSTS)
INCURRED BY LENDER IF AN INTEREST IN ANY INDIVIDUAL PROPERTY, OTHER THAN AS
PERMITTED HEREUNDER, IS CLAIMED BY ANOTHER PERSON.
5.1.14
COSTS OF ENFORCEMENT.
IN THE EVENT (A) THAT ANY MORTGAGE
ENCUMBERING ANY INDIVIDUAL PROPERTY IS FORECLOSED IN WHOLE OR IN PART OR THAT
ANY SUCH MORTGAGE IS PUT INTO THE HANDS OF AN ATTORNEY FOR COLLECTION, SUIT,
ACTION OR FORECLOSURE, (B) OF THE FORECLOSURE OF ANY MORTGAGE PRIOR TO OR
SUBSEQUENT TO ANY MORTGAGE ENCUMBERING ANY INDIVIDUAL PROPERTY IN WHICH
PROCEEDING LENDER IS MADE A PARTY, OR (C) OF THE BANKRUPTCY, INSOLVENCY,
REHABILITATION OR OTHER SIMILAR PROCEEDING IN RESPECT OF BORROWER OR ANY OF ITS
CONSTITUENT PERSONS OR AN ASSIGNMENT BY BORROWER OR ANY OF ITS CONSTITUENT
PERSONS FOR THE BENEFIT OF ITS CREDITORS, BORROWER, ITS SUCCESSORS OR ASSIGNS,
SHALL BE CHARGEABLE WITH AND AGREES TO PAY ALL COSTS OF COLLECTION AND DEFENSE,
INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS, INCURRED BY LENDER OR BORROWER
IN CONNECTION THEREWITH AND IN CONNECTION WITH ANY APPELLATE PROCEEDING OR
POST-JUDGMENT ACTION INVOLVED THEREIN, TOGETHER WITH ALL REQUIRED SERVICE OR USE
TAXES.
5.1.15
ESTOPPEL STATEMENT.
(A)
AFTER REQUEST BY LENDER, BORROWER SHALL WITHIN TEN (10) DAYS
FURNISH LENDER WITH A STATEMENT, DULY ACKNOWLEDGED AND CERTIFIED, SETTING FORTH
(I) THE AMOUNT OF THE ORIGINAL PRINCIPAL AMOUNT OF THE NOTE, (II) THE UNPAID
PRINCIPAL AMOUNT OF THE NOTE, (III) THE APPLICABLE INTEREST RATE OF THE NOTE,
(IV) THE DATE INSTALLMENTS OF INTEREST AND/OR PRINCIPAL WERE LAST PAID, (V) ANY
OFFSETS OR DEFENSES TO THE PAYMENT OF THE DEBT, IF ANY, AND (VI) THAT THE NOTE,
THIS AGREEMENT, THE MORTGAGES AND THE OTHER LOAN DOCUMENTS ARE VALID, LEGAL AND
BINDING OBLIGATIONS AND HAVE NOT BEEN MODIFIED OR IF MODIFIED, GIVING
PARTICULARS OF SUCH MODIFICATION.
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(B)
BORROWER SHALL USE COMMERCIALLY REASONABLE EFFORTS TO DELIVER TO
LENDER UPON REQUEST, TENANT ESTOPPEL CERTIFICATES FROM EACH COMMERCIAL TENANT
LEASING SPACE AT THE PROPERTIES IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO
LENDER PROVIDED THAT BORROWER SHALL NOT BE REQUIRED TO DELIVER SUCH CERTIFICATES
MORE FREQUENTLY THAN ONE (1) TIME IN ANY CALENDAR YEAR.
(C)
WITHIN THIRTY (30) DAYS OF REQUEST BY BORROWER, LENDER SHALL
DELIVER TO BORROWER A STATEMENT SETTING FORTH THE ITEMS DESCRIBED AT (A)(I),
(II), (III) AND (IV) OF THIS SECTION 5.1.15.
(D)
BORROWER SHALL, PROMPTLY UPON REQUEST OF LENDER, USE COMMERCIALLY
REASONABLE EFFORTS TO DELIVER AN ESTOPPEL CERTIFICATE FROM THE GROUND LESSOR
STATING THAT (I) THE GROUND LEASE IS IN FULL FORCE AND EFFECT AND HAS NOT BEEN
MODIFIED, AMENDED OR ASSIGNED, (II) NEITHER GROUND LESSOR NOR THE WESTBURY
BORROWER IS IN DEFAULT UNDER ANY OF THE TERMS, COVENANTS OR PROVISIONS OF THE
GROUND LEASE AND THE GROUND LESSOR KNOWS OF NO EVENT WHICH, BUT FOR THE PASSAGE
OF TIME OR THE GIVING OF NOTICE OR BOTH, WOULD CONSTITUTE AN EVENT OF DEFAULT
UNDER THE GROUND LEASE, (III) NEITHER THE GROUND LESSOR NOR THE WESTBURY
BORROWER HAS COMMENCED ANY ACTION OR GIVEN OR RECEIVED ANY NOTICE FOR THE
PURPOSE OF TERMINATING THE GROUND LEASE