in the Affiliate
Agreements referenced in Schedule B and as in effect as of the date hereof), and
customary closing costs (whether customarily payable by either seller or
purchaser) not to exceed in the aggregate two percent of the Gross Sales Price
of the Unit or Fractional Interest, and other costs approved by Lender.
Transfer:
Any sale, transfer, lease, conveyance, alienation, pledge,
assignment, mortgage, encumbrance, hypothecation or other disposition of (i) all
or any portion of the Project, (ii) all or any portion of Borrower's right,
title and interest (legal or equitable) in and to the Project or (iii) any
interest in Borrower or any Controlling interest in any member in Borrower and
which is not a Permitted Transfer.
Notwithstanding the foregoing, the sale of
any Unit or Facility in accordance with the terms of Article XV hereof shall not
constitute Transfers hereunder.
Underwriter Group:
As defined in Section 25.6(b).
Unit:
Any individual condominium unit created at the Project, including,
without limitation, Residential Condominium Unit or Fractional Ownership Unit
(all such condominium units shall collectively be referred to as the "Units").
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1
REPRESENTATIONS AND WARRANTIES.
To induce Lender to execute this Agreement and perform its obligations
hereunder, Borrower hereby represents and warrants to Lender as of the Effective
Date (and as of each date of a Requisition and disbursement, with updates of
such facts and circumstances that are reasonably necessary to include in such
Requisition to render the representations set forth therein true and correct in
all material respects) as follows:
(A)
BORROWER HAS GOOD AND MARKETABLE FEE SIMPLE TITLE TO THE DEVELOPMENT
LAND FREE AND CLEAR OF ALL LIENS, ENCUMBRANCES AND CHARGES WHATSOEVER, EXCEPT
FOR THE PERMITTED EXCEPTIONS.
BORROWER HAS THE RIGHT TO MORTGAGE, GRANT,
BARGAIN, SELL, PLEDGE, ASSIGN, WARRANT, TRANSFER AND CONVEY THE DEVELOPMENT
LAND.
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(B)
BORROWER HAS GOOD AND MARKETABLE LEASEHOLD TITLE TO THE SPA LAND,
PURSUANT TO THE GROUND LEASE, FREE AND CLEAR OF ALL LIENS, ENCUMBRANCES AND
CHANGES WHATSOEVER, EXCEPT FOR THE PERMITTED EXCEPTIONS. BORROWER HAS THE RIGHT
TO MORTGAGE ITS LEASEHOLD ESTATE IN THE SPA LAND.
THE CERTIFIED COPY OF THE
GROUND LEASE PROVIDED TO LENDER BY BORROWER IS TRUE, CORRECT AND COMPLETE IN ALL
RESPECTS.
THE GROUND LEASE IS IN FULL FORCE AND EFFECT AND HAS NOT BEEN
AMENDED, EXCEPT AS AMENDED BY THE GROUND LESSOR CONSENT, ESTOPPEL CERTIFICATE
AND AMENDMENT.
ALL RENTS, ADDITIONAL RENTS AND OTHER SUMS DUE AND PAYABLE UNDER
THE GROUND LEASE HAVE BEEN PAID IN FULL.
NEITHER BORROWER, AS GROUND LESSEE
UNDER THE GROUND LEASE, NOR GROUND LESSOR UNDER THE GROUND LEASE HAS RECEIVED OR
GIVEN ANY NOTICE OF A DEFAULT UNDER THE GROUND LEASE WHICH HAS NOT BEEN CURED.
(C)
EXCEPT AS OTHERWISE DISCLOSED IN WRITING BY BORROWER TO LENDER, NO
MATERIAL LITIGATION OR PROCEEDINGS ARE PENDING, OR, TO THE BEST OF BORROWER'S
KNOWLEDGE, THREATENED, AGAINST BORROWER, GUARANTOR, MEMBER OR THE PROJECT OR ANY
PORTION THEREOF.
THERE ARE NO PENDING, OR, TO BORROWER'S KNOWLEDGE, THREATENED,
ENVIRONMENTAL PROCEEDINGS IN RESPECT OF