Common use of Achieving Required Debt Yields Clause in Contracts

Achieving Required Debt Yields. (a) Lender hereby acknowledges and agrees that nothing herein contained shall prohibit Borrowers, in accordance with the provisions of Section 2.4.1 hereof, and provided that no Event of Default, Mortgage Event of Default or any Mezzanine Event of Default shall have occurred and be continuing, from satisfying any Debt Yield requirement set forth in Section 2.7.1 or 2.7.2 hereof by partially prepaying the Mortgage Loan, the Loan or the Mezzanine Loans prior to the commencement of the First Non-Qualified Extension Term, the Second Non-Qualified Extension Term or the Second Qualified Extension Term, as applicable, which prepayment shall be applied in accordance with Section 2.4.4(a) hereof. (b) Without limiting the generality of the foregoing Section 2.7.3(a), Mortgage Borrowers shall also have the right to satisfy any Debt Yield requirement set forth in Section 2.7.1 or 2.7.2 hereof by delivering to Mortgage Lender (for the benefit of Mortgage Lender, Lender and Mezzanine Lenders) a Letter of Credit in an amount equal to the principal repayment of the Aggregate Outstanding Principal Balance that would be required in order to achieve the applicable required Debt Yield (each, a “Debt Yield Letter of Credit”). If Mortgage Borrowers elect to deliver any Debt Yield Letter of Credit, the following shall apply to each such Debt Yield Letter of Credit: (i) Borrowers shall cause Mortgage Borrowers to pay to Mortgage Lender all of Mortgage Lender’s reasonable out-of-pocket costs and expenses in connection therewith, including, without limitation, any costs or expenses incurred in drawing down on such Debt Yield Letter of Credit. Mortgage Borrowers shall not be entitled to draw from any such Debt Yield Letter of Credit. Upon five (5) days notice to Lender and Mortgage Lender and provided that no Event of Default, Mortgage Event of Default or any Mezzanine Event of Default shall have occurred and be continuing, Mortgage Borrowers may replace such Debt Yield Letter of Credit with a partial prepayment of the Mortgage Loan, the Loan and the Mezzanine Loans in an aggregate amount equal to such Debt Yield Letter of Credit, which prepayment shall be applied in accordance with Section 2.4.3(a) of the Mortgage Loan Agreement and Section 2.4.4(a) hereof, following which prepayment, Mortgage Lender shall promptly return such Debt Yield Letter of Credit to Mortgage Borrowers. (ii) Each Debt Yield Letter of Credit delivered under this Agreement shall be additional security for the payment of the Mortgage Debt. Upon the occurrence and during the continuance of a Mortgage Event of Default, Mortgage Lender shall have the right, at its option, to draw on any Debt Yield Letter of Credit and to apply all or any part of the proceeds thereof in accordance with the provisions of Section 2.4.3(a) of the Mortgage Loan Agreement and Section 2.4.4(a) hereof applicable to a prepayment following the occurrence and during the continuance of a Mortgage Event of Default. (iii) In addition to any other right Mortgage Lender may have to draw upon a Debt Yield Letter of Credit pursuant to the terms and conditions of the Mortgage Loan Agreement, Mortgage Lender shall have the additional rights to draw in full on any Debt Yield Letter of Credit: (A) with respect to any evergreen Debt Yield Letter of Credit, if Mortgage Lender has received a notice from the issuing bank that such Debt Yield Letter of Credit will not be renewed and a substitute Debt Yield Letter of Credit is not provided at least ten (10) Business Days prior to the date on which the outstanding Debt Yield Letter of Credit is scheduled to expire; (B) with respect to any Debt Yield Letter of Credit with a stated expiration date, if Mortgage Lender has not received a notice from the issuing bank that it has renewed such Debt Yield Letter of Credit at least ten (10) Business Days prior to the date on which such Debt Yield Letter of Credit is scheduled to expire and a substitute Debt Yield Letter of Credit is not provided at least ten (10) Business Days prior to the date on which the outstanding Debt Yield Letter of Credit is scheduled to expire; (C) upon receipt of notice from the issuing bank that such Debt Yield Letter of Credit will be terminated and a substitute Debt Yield Letter of Credit is not provided at least ten (10) Business Days prior to the date on which the outstanding Debt Yield Letter of Credit is scheduled to be terminated; or (D) if Mortgage Lender has received notice that the bank issuing any Debt Yield Letter of Credit shall cease to be an Eligible Institution and within ten (10) Business Days after Mortgage Lender notifies Mortgage Borrowers in writing of such circumstance, Mortgage Borrowers shall fail to deliver to Mortgage Lender a substitute Debt Yield Letter of Credit issued by an Eligible Institution. Notwithstanding anything to the contrary contained in the above, Mortgage Lender is not obligated to draw upon any Debt Yield Letter of Credit upon the happening of an event specified in clause (A), (B), (C) or (D) above and shall not be liable for any losses sustained by Mortgage Borrowers due to the insolvency of the bank issuing any such Debt Yield Letter of Credit if Mortgage Lender has not drawn upon such Debt Yield Letter of Credit.

Achieving Required Debt Yields. (a) Lender hereby acknowledges and agrees that nothing herein contained shall prohibit Borrowers, in accordance with the provisions of Section 2.4.1 hereof, and provided that no Event of Default, Mortgage First Mezzanine Event of Default, Second Mezzanine Event of Default or any Third Mezzanine Event of Default shall have occurred and be continuing, from satisfying any Debt Yield requirement set forth in Section 2.7.1 or 2.7.2 hereof by partially prepaying the Mortgage Loan, the First Mezzanine Loan, the Second Mezzanine Loan or and the Third Mezzanine Loans Loan prior to the commencement of the First Non-Qualified Extension Term, the Second Non-Qualified Extension Term or the Second Qualified Extension Term, as applicable, which prepayment shall be applied in accordance with Section 2.4.4(a2.4.3(a) hereof. (b) Without limiting the generality of the foregoing Section 2.7.3(a), Mortgage Borrowers shall also have the right to satisfy any Debt Yield requirement set forth in Section 2.7.1 or 2.7.2 hereof by delivering to Mortgage Lender (for the benefit of Mortgage Lender, Lender and Mezzanine Lenders) a Letter of Credit in an amount equal to the principal repayment of the Aggregate Outstanding Principal Balance that would be required in order to achieve the applicable required Debt Yield (each, a “Debt Yield Letter of Credit”). If Mortgage Borrowers elect to deliver any Debt Yield Letter of Credit, the following shall apply to each such Debt Yield Letter of Credit: (i) Borrowers shall cause Mortgage Borrowers to pay to Mortgage Lender all of Mortgage Lender’s reasonable out-of-pocket costs and expenses in connection therewith, including, without limitation, any costs or expenses incurred in drawing down on such Debt Yield Letter of Credit. Mortgage Borrowers shall not be entitled to draw from any such Debt Yield Letter of Credit. Upon five (5) days notice to Lender and Mortgage Lender and provided that no Event of Default, Mortgage First Mezzanine Event of Default, Second Mezzanine Event of Default or any Third Mezzanine Event of Default shall have occurred and be continuing, Mortgage Borrowers may replace such Debt Yield Letter of Credit with a partial prepayment of the Mortgage Loan, the First Mezzanine Loan, the Second Mezzanine Loan and the Third Mezzanine Loans Loan in an aggregate amount equal to such Debt Yield Letter of Credit, which prepayment shall be applied in accordance with Section 2.4.3(a) of the Mortgage Loan Agreement and Section 2.4.4(a) hereof, following which prepayment, Mortgage Lender shall promptly return such Debt Yield Letter of Credit to Mortgage Borrowers. (ii) Each Debt Yield Letter of Credit delivered under this Agreement shall be additional security for the payment of the Mortgage Debt. Upon the occurrence and during the continuance of a Mortgage an Event of Default, Mortgage Lender shall have the right, at its option, to draw on any Debt Yield Letter of Credit and to apply all or any part of the proceeds thereof in accordance with the provisions of Section 2.4.3(a) of the Mortgage Loan Agreement and Section 2.4.4(a) hereof applicable to a prepayment following the occurrence and during the continuance of a Mortgage an Event of Default. (iii) In addition to any other right Mortgage Lender may have to draw upon a Debt Yield Letter of Credit pursuant to the terms and conditions of the Mortgage Loan this Agreement, Mortgage Lender shall have the additional rights to draw in full on any Debt Yield Letter of Credit: (A) with respect to any evergreen Debt Yield Letter of Credit, if Mortgage Lender has received a notice from the issuing bank that such Debt Yield Letter of Credit will not be renewed and a substitute Debt Yield Letter of Credit is not provided at least ten (10) Business Days prior to the date on which the outstanding Debt Yield Letter of Credit is scheduled to expire; (B) with respect to any Debt Yield Letter of Credit with a stated expiration date, if Mortgage Lender has not received a notice from the issuing bank that it has renewed such Debt Yield Letter of Credit at least ten (10) Business Days prior to the date on which such Debt Yield Letter of Credit is scheduled to expire and a substitute Debt Yield Letter of Credit is not provided at least ten (10) Business Days prior to the date on which the outstanding Debt Yield Letter of Credit is scheduled to expire; (C) upon receipt of notice from the issuing bank that such Debt Yield Letter of Credit will be terminated and a substitute Debt Yield Letter of Credit is not provided at least ten (10) Business Days prior to the date on which the outstanding Debt Yield Letter of Credit is scheduled to be terminated; or (D) if Mortgage Lender has received notice that the bank issuing any Debt Yield Letter of Credit shall cease to be an Eligible Institution and within ten (10) Business Days after Mortgage Lender notifies Mortgage Borrowers in writing of such circumstance, Mortgage Borrowers shall fail to deliver to Mortgage Lender a substitute Debt Yield Letter of Credit issued by an Eligible Institution. Notwithstanding anything to the contrary contained in the above, Mortgage Lender is not obligated to draw upon any Debt Yield Letter of Credit upon the happening of an event specified in clause (A), (B), (C) or (D) above and shall not be liable for any losses sustained by Mortgage Borrowers due to the insolvency of the bank issuing any such Debt Yield Letter of Credit if Mortgage Lender has not drawn upon such Debt Yield Letter of Credit.

Achieving Required Debt Yields. (a) Lender hereby acknowledges and agrees that nothing herein contained shall prohibit Borrowers, in accordance with the provisions of Section 2.4.1 hereof, and provided that no Event of Default, Mortgage Event of Default or any Mezzanine Event of Default shall have occurred and be continuing, from satisfying any Debt Yield requirement set forth in Section 2.7.1 or 2.7.2 hereof by partially prepaying the Mortgage Loan, the Loan or the Mezzanine Loans prior to the commencement of the First Non-Qualified Extension Term, the Second Non-Qualified Extension Term or the Second Qualified Extension Term, as applicable, which prepayment shall be applied in accordance with Section 2.4.4(a2.4.3(a) hereof. (b) Without limiting the generality of the foregoing Section 2.7.3(a), Mortgage Borrowers shall also have the right to satisfy any Debt Yield requirement set forth in Section 2.7.1 or 2.7.2 hereof by delivering to Mortgage Lender (for the benefit of Mortgage Lender, Lender and Mezzanine Lenders) a Letter of Credit in an amount equal to the principal repayment of the Aggregate Outstanding Principal Balance that would be required in order to achieve the applicable required Debt Yield (each, a “Debt Yield Letter of Credit”). If Mortgage Borrowers elect to deliver any Debt Yield Letter of Credit, the following shall apply to each such Debt Yield Letter of Credit: (i) Borrowers shall cause Mortgage Borrowers to pay to Mortgage Lender all of Mortgage Lender’s reasonable out-of-pocket costs and expenses in connection therewith, including, without limitation, any costs or expenses incurred in drawing down on such Debt Yield Letter of Credit. Mortgage Borrowers shall not be entitled to draw from any such Debt Yield Letter of Credit. Upon five (5) days notice to Lender and Mortgage Lender and provided that no Event of Default, Mortgage Event of Default or any Mezzanine Event of Default shall have occurred and be continuing, Mortgage Borrowers may replace such Debt Yield Letter of Credit with a partial prepayment of the Mortgage Loan, the Loan and the Mezzanine Loans in an aggregate amount equal to such Debt Yield Letter of Credit, which prepayment shall be applied in accordance with Section 2.4.3(a) of the Mortgage Loan Agreement and Section 2.4.4(a) hereof, following which prepayment, Mortgage Lender shall promptly return such Debt Yield Letter of Credit to Mortgage Borrowers. (ii) Each Debt Yield Letter of Credit delivered under this Agreement shall be additional security for the payment of the Mortgage Debt. Upon the occurrence and during the continuance of a Mortgage an Event of Default, Mortgage Lender shall have the right, at its option, to draw on any Debt Yield Letter of Credit and to apply all or any part thereof to the payment of the proceeds thereof Debt in accordance with the provisions of Section 2.4.3(a) of the Mortgage Loan Agreement and Section 2.4.4(a) hereof applicable to a prepayment following the occurrence and during the continuance of a Mortgage Event of Defaultsuch order, proportion or priority as Lender may determine. (iii) In addition to any other right Mortgage Lender may have to draw upon a Debt Yield Letter of Credit pursuant to the terms and conditions of the Mortgage Loan this Agreement, Mortgage Lender shall have the additional rights to draw in full on any Debt Yield Letter of Credit: (A) with respect to any evergreen Debt Yield Letter of Credit, if Mortgage Lender has received a notice from the issuing bank that such Debt Yield Letter of Credit will not be renewed and a substitute Debt Yield Letter of Credit is not provided at least ten (10) Business Days prior to the date on which the outstanding Debt Yield Letter of Credit is scheduled to expire; (B) with respect to any Debt Yield Letter of Credit with a stated expiration date, if Mortgage Lender has not received a notice from the issuing bank that it has renewed such Debt Yield Letter of Credit at least ten (10) Business Days prior to the date on which such Debt Yield Letter of Credit is scheduled to expire and a substitute Debt Yield Letter of Credit is not provided at least ten (10) Business Days prior to the date on which the outstanding Debt Yield Letter of Credit is scheduled to expire; (C) upon receipt of notice from the issuing bank that such Debt Yield Letter of Credit will be terminated and a substitute Debt Yield Letter of Credit is not provided at least ten (10) Business Days prior to the date on which the outstanding Debt Yield Letter of Credit is scheduled to be terminated; or (D) if Mortgage Lender has received notice that the bank issuing any Debt Yield Letter of Credit shall cease to be an Eligible Institution and within ten (10) Business Days after Mortgage Lender notifies Mortgage Borrowers in writing of such circumstance, Mortgage Borrowers shall fail to deliver to Mortgage Lender a substitute Debt Yield Letter of Credit issued by an Eligible Institution. Notwithstanding anything to the contrary contained in the above, Mortgage Lender is not obligated to draw upon any Debt Yield Letter of Credit upon the happening of an event specified in clause (A), (B), (C) or (D) above and shall not be liable for any losses sustained by Mortgage Borrowers due to the insolvency of the bank issuing any such Debt Yield Letter of Credit if Mortgage Lender has not drawn upon such Debt Yield Letter of Credit.

Achieving Required Debt Yields. (a) Lender hereby acknowledges and agrees that nothing herein contained shall prohibit Borrowers, in accordance with the provisions of Section 2.4.1 hereof, and provided that no Event of Default, Mortgage Event of Default or any Mezzanine Event of Default shall have occurred and be continuing, from satisfying any Debt Yield requirement set forth in Section 2.7.1 or 2.7.2 hereof by partially prepaying the Mortgage Loan, the Loan or the Mezzanine Loans prior to the commencement of the First Non-Qualified Extension Term, the Second Non-Qualified Extension Term or the Second Qualified Extension Term, as applicable, which prepayment shall be applied in accordance with Section 2.4.4(a) hereof. (b) Without limiting the generality of the foregoing Section 2.7.3(a), Mortgage Borrowers shall also have the right to satisfy any Debt Yield requirement set forth in in Section 2.7.1 or 2.7.2 hereof by delivering to Mortgage Lender (for the benefit of Mortgage Lender, Lender and Mezzanine Lenders) a Letter of Credit in an amount equal to the principal repayment of the Aggregate Outstanding Principal Balance that would be required in order to achieve the applicable required Debt Yield (each, a “Debt Yield Letter of Credit”). If Mortgage Borrowers elect to deliver any Debt Yield Letter of Credit, the following shall apply to each such Debt Yield Letter of Credit: (i) Borrowers shall cause Mortgage Borrowers to pay to Mortgage Lender all of Mortgage Lender’s reasonable out-of-pocket costs and expenses in connection therewith, including, without limitation, any costs or expenses incurred in drawing down on such Debt Yield Letter of Credit. Mortgage Borrowers shall not be entitled to draw from any such Debt Yield Letter of Credit. Upon five (5) days notice to Lender and Mortgage Lender and provided that no Event of Default, Mortgage Event of Default or any Mezzanine Event of Default shall have occurred and be continuing, Mortgage Borrowers may replace such Debt Yield Letter of Credit with a partial prepayment of the Mortgage Loan, the Loan and the Mezzanine Loans in an aggregate amount equal to such Debt Yield Letter of Credit, which prepayment shall be applied in accordance with Section 2.4.3(a) of the Mortgage Loan Agreement and Section 2.4.4(a) hereof, following which prepayment, Mortgage Lender shall promptly return such Debt Yield Letter of Credit to Mortgage Borrowers. (ii) Each Debt Yield Letter of Credit delivered under this Agreement shall be additional security for the payment of the Mortgage Debt. Upon the occurrence and during the continuance of a Mortgage Event of Default, Mortgage Lender shall have the right, at its option, to draw on any Debt Yield Letter of Credit and to apply all or any part of the proceeds thereof in accordance with the provisions of Section 2.4.3(a) of the Mortgage Loan Agreement and Section 2.4.4(a) hereof applicable to a prepayment following the occurrence and during the continuance of a Mortgage Event of Default. (iii) In addition to any other right Mortgage Lender may have to draw upon a Debt Yield Letter of Credit pursuant to the terms and conditions of the Mortgage Loan Agreement, Mortgage Lender shall have the additional rights to draw in full on any Debt Yield Letter of Credit: (A) with respect to any evergreen Debt Yield Letter of Credit, if Mortgage Lender has received a notice from the issuing bank that such Debt Yield Letter of Credit will not be renewed and a substitute Debt Yield Letter of Credit is not provided at least ten (10) Business Days prior to the date on which the outstanding Debt Yield Letter of Credit is scheduled to expire; (B) with respect to any Debt Yield Letter of Credit with a stated expiration date, if Mortgage Lender has not received a notice from the issuing bank that it has renewed such Debt Yield Letter of Credit at least ten (10) Business Days prior to the date on which such Debt Yield Letter of Credit is scheduled to expire and a substitute Debt Yield Letter of Credit is not provided at least ten (10) Business Days prior to the date on which the outstanding Debt Yield Letter of Credit is scheduled to expire; (C) upon receipt of notice from the issuing bank that such Debt Yield Letter of Credit will be terminated and a substitute Debt Yield Letter of Credit is not provided at least ten (10) Business Days prior to the date on which the outstanding Debt Yield Letter of Credit is scheduled to be terminated; or (D) if Mortgage Lender has received notice that the bank issuing any Debt Yield Letter of Credit shall cease to be an Eligible Institution and within ten (10) Business Days after Mortgage Lender notifies Mortgage Borrowers in writing of such circumstance, Mortgage Borrowers shall fail to deliver to Mortgage Lender a substitute Debt Yield Letter of Credit issued by an Eligible Institution. Notwithstanding anything to the contrary contained in the above, Mortgage Lender is not obligated to draw upon any Debt Yield Letter of Credit upon the happening of an event specified in clause (A), (B), (C) or (D) above and shall not be liable for any losses sustained by Mortgage Borrowers due to the insolvency of the bank issuing any such Debt Yield Letter of Credit if Mortgage Lender has not drawn upon such Debt Yield Letter of Credit.