Borrower or
waiver by Lender of the following conditions precedent no later than the
Modification Date:
3.1.1
REPRESENTATIONS AND WARRANTIES; COMPLIANCE WITH CONDITIONS.
THE
REPRESENTATIONS AND WARRANTIES OF BORROWER CONTAINED IN THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND
AS OF THE MODIFICATION DATE WITH THE SAME EFFECT AS IF MADE ON AND AS OF SUCH
DATE, AND NO DEFAULT OR AN EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE
CONTINUING; AND BORROWER SHALL BE IN COMPLIANCE IN ALL MATERIAL RESPECTS WITH
ALL TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND IN EACH OTHER LOAN
DOCUMENT ON ITS PART TO BE OBSERVED OR PERFORMED.
3.1.2
LOAN AGREEMENT AND NOTE.
LENDER SHALL HAVE RECEIVED A COPY OF THIS
AGREEMENT AND THE NOTE, IN EACH CASE, DULY EXECUTED AND DELIVERED ON BEHALF OF
BORROWER.
3.1.3
DELIVERY OF LOAN DOCUMENTS; TITLE INSURANCE; REPORTS; LEASES, ETC.
(A)
MORTGAGE, ASSIGNMENT OF LEASES AND OTHER LOAN DOCUMENTS.
LENDER
SHALL HAVE RECEIVED FROM BORROWER FULLY EXECUTED AND ACKNOWLEDGED COUNTERPARTS
OF THE MORTGAGE AND THE ASSIGNMENT OF LEASES AND EVIDENCE THAT COUNTERPARTS OF
THE MORTGAGE AND ASSIGNMENT OF LEASES HAVE BEEN DELIVERED TO THE TITLE COMPANY
FOR RECORDING, IN THE REASONABLE JUDGMENT OF LENDER, SO AS TO EFFECTIVELY CREATE
UPON SUCH RECORDING VALID AND ENFORCEABLE FIRST PRIORITY LIENS UPON THE PROPERTY
IN FAVOR OF LENDER OR LENDER'S NOMINEE (OR SUCH TRUSTEE AS MAY BE REQUIRED UNDER
LOCAL LAW), SUBJECT ONLY TO THE PERMITTED ENCUMBRANCES AND SUCH OTHER LIENS AS
ARE PERMITTED PURSUANT TO THE LOAN DOCUMENTS.
LENDER SHALL HAVE ALSO RECEIVED
FROM BORROWER FULLY EXECUTED COUNTERPARTS OF THE ASSIGNMENT OF PROPERTY
MANAGEMENT AGREEMENT AND THE OTHER LOAN DOCUMENTS.
(B)
TITLE INSURANCE.
LENDER SHALL HAVE RECEIVED A BINDING COMMITMENT
TO ISSUE A TITLE INSURANCE POLICY ISSUED BY A TITLE COMPANY ACCEPTABLE TO LENDER
AND DATED AS OF THE MODIFICATION DATE.
TO THE EXTENT PERMITTED BY APPLICABLE
LEGAL REQUIREMENTS, SUCH TITLE INSURANCE POLICY SHALL (I) PROVIDE COVERAGE IN AN
AMOUNT EQUAL TO THE PRINCIPAL AMOUNT OF THE LOAN TOGETHER WITH, IF APPLICABLE, A
"TIE-IN" OR SIMILAR ENDORSEMENT, (II) INSURE LENDER OR LENDER'S NOMINEE THAT THE
MORTGAGE CREATES A VALID FIRST PRIORITY LIEN ON THE 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), (III) CONTAIN SUCH ENDORSEMENTS AND AFFIRMATIVE COVERAGES
AS LENDER MAY REASONABLY REQUEST, AND (IV) NAME LENDER OR LENDER'S NOMINEE, ITS
SUCCESSORS AND ASSIGNS, AS THE INSURED.
LENDER ALSO SHALL HAVE RECEIVED
EVIDENCE THAT ALL PREMIUMS IN RESPECT OF SUCH TITLE INSURANCE POLICY HAVE BEEN
PAID.
(C)
SURVEY.
LENDER SHALL HAVE RECEIVED A TITLE SURVEY FOR THE
PROPERTY, CERTIFIED TO THE TITLE COMPANY AND LENDER AND THEIR SUCCESSORS AND
ASSIGNS, IN FORM AND CONTENT SATISFACTORY TO LENDER AND PREPARED BY A
PROFESSIONAL AND PROPERLY LICENSED LAND SURVEYOR SATISFACTORY TO LENDER IN
ACCORDANCE WITH THE MOST RECENT MINIMUM STANDARD DETAIL
30
REQUIREMENTS FOR ALTA/ACSM LAND TITLE