occupancy statement relating to
the Property reasonably acceptable to Lender (each, a "Rent Roll") which
includes all Leases affecting the Property. Except as set forth in the Rent Roll
(as same has been updated by written notice thereof to Lender) delivered to
Lender on or prior to the Closing Date: (a) the Sotheby's Lease is in full force
and effect; (b) the premises demised under the Sotheby's Lease has been
completed and Sotheby's has accepted possession of and is in occupancy of all of
its demised premises under the Sotheby's Lease; (c) Sotheby's has commenced the
payment of rent under the Sotheby's Lease, there are no offsets, claims or
defenses to the enforcement thereof, and Borrower has no monetary obligations to
Sotheby's under the Sotheby's Lease; (d) all Rents due and payable under the
Sotheby's Lease have been paid and no portion thereof has been paid for any
period more than thirty (30) days in advance;
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Confidential Treatment Requested by BANA
BANA-Soth-00102
(e) the rent payable under Sotheby's Lease is the amount of fixed rent set forth
in the Sotheby's Lease, and there is no claim or basis for a claim by Sotheby's
for an offset or adjustment to the rent; (f) Sotheby's has not made any written
claim of a material default against Borrower which remains outstanding nor has
Borrower or Manager received, by telephonic, in-person, e-mail or other
communication, any notice of a material default under the Sotheby's Lease; (g)
to Borrower's knowledge there is no present material default by Sotheby's under
the Sotheby's Lease; (h) all security deposits, if any, under the Sotheby's
Lease have been collected by Borrower; (i) Borrower is the sole owner of the
entire landlord's interest in the Sotheby's Lease; (j) the Sotheby's Lease is
the valid, binding and enforceable obligation of Borrower and the Sotheby's
Lease and the Sotheby's Guaranty are the valid, binding and enforceable
obligation of Sotheby's and Sotheby's Guarantor (as applicable) and there are no
agreements with Sotheby's or Sotheby's Guarantor under the Sotheby's Lease or
the Sotheby's Guaranty (as applicable) other than as expressly set forth in the
Sotheby's Lease or the Sotheby's Guaranty (as applicable); (k) to Borrower's
actual knowledge, no Person has any possessory interest in, or right to occupy,
the Property or any portion thereof except under the terms of the Sotheby's
Lease or any of the existing subleases thereof as set forth on Schedule 8.1(i)
thereof; (1) the Sotheby's Lease does not contain any option or offer to
purchase or right of first refusal to purchase the Property or any part thereof
(other than the right of first offer set forth in Section 23 thereof); (m)
neither the Sotheby's Lease nor the Rents have been assigned, pledged or
hypothecated except to Lender, and no other Person has any interest therein
except Sotheby's; and (n) no conditions exist which now give Sotheby's the right
to "go dark" pursuant to the provisions of the Sotheby's Lease.
Section 4.26. Filing and Recording Taxes