Conditions for Release. Notwithstanding anything to the contrary set forth in this Agreement or the other Loan Documents, in the event that IP Borrower shall desire to sell the IP (in whole but not in part) (an “IP Sale”) to a bonafide third party purchaser (a “IP Purchaser”), IP Borrower shall have the right, without the prior consent of Lender and without violating the Loan Documents, to sell the entire IP and obtain a release of the IP from the Liens of the Mortgage and the other Loan Documents encumbering the IP to an IP Purchaser, provided that all of the following conditions shall be satisfied with respect to such IP Sale: (i) IP Borrower shall have submitted a Sale Request to Lender at least ten (10) Business Days prior to the anticipated date of such IP Sale, which shall include a copy of the contract of sale relating to such IP Sale and an Officer’s Certificate providing a certification that (A) as of the date of such Sale Request, no monetary Default, monetary First Mezzanine Default, monetary Second Mezzanine Default or monetary Third Mezzanine Default, and no Event of Default, First Mezzanine Event of Default, Second Mezzanine Event of Default or Third Mezzanine Event of Default, shall have occurred and be continuing and (B) the copy of the contract of sale relating to such IP Sale attached to such certification is true, correct and complete; (ii) IP Borrower shall have delivered to Lender reasonably detailed information regarding the terms of, and the actual and reasonably anticipated costs and expenses associated with, such IP Sale in order to enable Lender to reasonably determine the IP Release Price with respect thereto, all of which shall be certified by IP Borrower to Lender as true, complete and correct; (iii) All accrued and unpaid interest and any unpaid or unreimbursed amounts in respect of the Reduced Acquisition Loan and/or the Construction Loan and/or the First Mezzanine Loan and/or the Second Mezzanine Loan and/or the Third Mezzanine Loan and any other sum then due hereunder or under any of the other Loan Documents and/or under any of the First Mezzanine Loan Documents and/or under any of the Second Mezzanine Loan Documents and/or under any of the Third Mezzanine Loan Documents, including, without limitation, any applicable Breakage Costs, shall have been paid in full or shall have been arranged to be paid in full contemporaneously with the closing of such IP Sale; provided, however, if such IP Sale closes on a date which is not a Payment Date, Borrowers shall also have paid or shall have arranged to be paid contemporaneously with the closing of such IP Sale, interest on the IP Release Price to, but not including, the next succeeding first (1st) day of a calendar month; (iv) Intentionally Deleted; (v) In addition to the amounts set forth in the foregoing clause (iii), Borrowers shall have paid, or shall have arranged to be paid contemporaneously with the closing of the IP Sale, to Lender a release price with respect to the IP equal to the greater of the following (whichever of the following subclause (A) or (B) is greater, the “IP Release Price”), which IP Release Price shall be applied as contemplated by Section 2.4.3 hereof: (A) (1) the gross sales price for the IP, less (2) the amount of all reasonable and customary closing costs in connection with such IP Sale actually paid by any Borrower to any Person who is not a Restricted Party or any Affiliate thereof; provided, however, that in no event shall such closing costs exceed three percent (3%) of such gross sales price; or (B) one hundred twenty-five percent (125%) of the Allocated Loan Amount for the IP; (vi) Intentionally Deleted; (vii) Intentionally Deleted; (viii) Borrowers shall have paid all of the actual out-of-pocket reasonable third party legal fees and actual out-of-pocket reasonable third party expenses incurred by Lender in connection with (A) reviewing and processing any Sale Request with respect to an IP Sale, whether or not the IP Sale which is the subject of a Sale Request actually closes, (B) the satisfaction of any of the conditions set forth in this Section 2.5.3(a), and (C) providing all release documents in connection with any IP Sale as provided in Section 2.5.3(d) hereof; (ix) No monetary Default, monetary First Mezzanine Default, monetary Second Mezzanine Default or monetary Third Mezzanine Default, and no Event of Default, First Mezzanine Event of Default, Second Mezzanine Event of Default or Third Mezzanine Event of Default, shall have occurred and be continuing at the time of the submission by IP Borrower of a Sale Request or at the time of the closing of an IP Sale; (x) There shall only be one (1) IP Sale; (xi) The IP Purchaser shall enter into one or more royalty free license agreements, in form and substance reasonably satisfactory to Borrowers and Lender, applying the standards of a prudent commercial mortgage loan lender, pursuant to which such IP Purchaser shall license to each Borrower all of the IP that is reasonably necessary or desirable to operate its Property as then being operated and as then contemplated to be operated in the future (collectively, the “Purchaser Licensed IP”), and each applicable Borrower, at Borrowers’ sole cost and expense, shall execute and deliver, or cause to be executed and delivered, to and for the benefit of Lender, a security interest agreement covering such Purchaser Licensed IP, together with such other financing statements, documents and/or instruments reasonably required by Lender in order to perfect its security interest in the Purchaser Licensed IP and to enable Lender to foreclose on such Purchaser Licensed IP upon the occurrence and during the continuance of an Event of Default, all of the foregoing to be in form and substance reasonably satisfactory to Lender; and (xii) Borrowers shall have delivered to Lender (A) any amendments to the Loan Documents deemed reasonably necessary by Lender in order to effectuate the release of the IP, and (B) all documents and information reasonably requested by Lender in order to verify the satisfaction of the foregoing conditions.
Appears in 1 contract
Conditions for Release. Notwithstanding anything to the contrary set forth in this Agreement or the other Loan Documents, in the event that IP Borrower shall desire to sell the IP (in whole but not in part) (an “IP Sale”) ), to either a bonafide third party purchaser (a “Bonafide IP Purchaser”) or to an Affiliate of Borrower or any other Restricted Party (an “Affiliate IP Purchaser”; and together with a Bonafide IP Purchaser, individually, an “IP Purchaser”), IP Borrower shall have the right, without the prior consent of Lender and without violating the Loan Documents, to sell the entire IP and obtain a release of the IP from the Liens of the Mortgage and the other Loan Documents encumbering the IP to an IP PurchaserIP, provided that all of the following conditions shall be satisfied with respect to such IP Sale:
(i) IP Borrower shall have submitted a Sale Request to Lender at least ten (10) Business Days prior to the anticipated date of such IP Sale, which shall include a copy of the contract of sale relating to such IP Sale and an Officer’s Certificate providing a certification that (A) as of the date of such Sale Request, no monetary Default, monetary First Mezzanine Default, monetary Second Mezzanine Default or monetary Third Mezzanine Default, and no Event of Default, First Mezzanine Event of Default, Second Mezzanine nor any Event of Default or Third Mezzanine Event of Default, shall have occurred and be continuing continuing, (B) the proposed purchaser is a Bonafide IP Purchaser or an Affiliate IP Purchaser, as applicable, and (BC) the copy of the contract of sale relating to such IP Sale attached to such certification is true, correct and complete;
(ii) IP Borrower shall have delivered to Lender reasonably detailed information regarding the terms of, and the actual and reasonably anticipated costs and expenses associated with, such IP Sale in order to enable Lender to reasonably determine the IP Release Price with respect thereto, all of which shall be certified by IP Borrower to Lender as true, complete and correct;
(iii) All accrued and unpaid interest and any unpaid or unreimbursed amounts in respect of the Reduced Acquisition Loan and/or the Construction Loan and/or the First Mezzanine Loan and/or the Second Mezzanine Loan and/or the Third Mezzanine Loan and any other sum then due hereunder or under any of the other Loan Documents and/or under any of the First Mezzanine Loan Documents and/or under any of the Second Mezzanine Loan Documents and/or under any of the Third Mezzanine Loan Documents, including, without limitation, any applicable Breakage Costs, shall have been paid in full or shall have been arranged to be paid in full contemporaneously with the closing of such IP Sale; provided, however, if such IP Sale closes on a date which is not a Payment Date, Borrowers shall also have paid or shall have arranged to be paid contemporaneously with the closing of such IP Sale, interest on the IP Release Price to, but not including, the next succeeding first ninth (1st9th) day of a calendar month;
(iv) Intentionally DeletedIf the closing of such IP Sale shall occur prior to the Prepayment Fee Release Date, Borrowers shall have paid or shall have arranged to be paid contemporaneously with the closing of such IP Sale, the Prepayment Fee based on the IP Release Price;
(v) In If the IP Purchaser is a Bonafide IP Purchaser, in addition to the amounts set forth in the foregoing clause clauses (iii) and (iv), Borrowers shall have paid, or shall have arranged to be paid contemporaneously with the closing of the IP Sale, to Lender a release price with respect to the IP equal to the greater of the following (whichever of the following subclause (A) or (B) is greater, the “Bonafide IP Release Price”), which Bonafide IP Release Price shall be applied as contemplated by Section 2.4.3 hereof:
(A) (1) the gross sales price for the IP, less (2) the amount of all reasonable and customary closing costs in connection with such IP Sale actually paid by any Borrower to any Person who is not a Restricted Party or any Affiliate thereof; provided, however, that in no event shall such closing costs exceed three percent (3%) of such gross sales price; or
(B) one hundred twenty-five percent (125%) of the Allocated Loan Amount for the IP;
(vi) Intentionally DeletedIf the IP Purchaser is an Affiliate IP Purchaser, in addition to the amounts set forth in the foregoing clauses (iii) and (iv), Borrowers shall have paid, or shall have arranged to be paid contemporaneously with the closing of the IP Sale, to Lender a release price with respect to the IP equal to the greater of the following (whichever of the following subclause (A) or (B) is greater, the “Affiliate IP Release Price”; and whichever of the Bonafide IP Release Price or the Affiliate IP Release Price shall be applicable, the “IP Release Price”), which Affiliate IP Release Price shall be applied as contemplated by Section 2.4.3 hereof:
(A) (1) the gross sales price for the IP, less (2) the amount of all reasonable and customary closing costs in connection with such IP Sale actually paid by any Borrower to any Person who is not a Restricted Party or any Affiliate thereof; provided, however, that in no event shall such closing costs exceed three percent (3%) of such gross sales price; or
(B) Eighty Million Dollars ($80,000,000.00);
(vii) Intentionally DeletedIf the IP Purchaser is an Affiliate IP Purchaser, simultaneously with the closing of the IP Sale, (A) if such IP Purchaser is a Joint Venture, at Lender’s election, the ownership interest(s) of any Affiliate Joint Venture Counterparty shall be pledged to Lender as additional collateral for the Obligations, which pledge shall constitute a first priority Lien thereon, and Borrowers shall have (1) obtained the consent of each Unaffiliated Joint Venture Counterparty to such pledge, and (2) executed and delivered, and caused any such Affiliate Joint Venture Counterparty and Unaffiliated Joint Venture Counterparty to execute and deliver, such documents and instruments, and taken such further actions, and caused any such Affiliate Joint Venture Counterparty and Unaffiliated Joint Venture Counterparty to take any such further actions, as reasonably requested by Lender to evidence, secure and perfect such pledge of the ownership interest(s) of any Affiliate Joint Venture Counterparty, or (B) if such IP Purchaser is an Affiliate IP Purchaser of any kind, whether or not a Joint Venture, at Lender’s election, which in the case of an IP Purchaser who is a Joint Venture, would be in lieu of the foregoing clause (A), a security interest in any future sales proceeds from the sale of the IP shall be pledged to Lender as additional collateral for the Obligations, which pledge shall constitute a first priority Lien thereon, and Borrowers shall have executed such documents and instruments, and taken such further actions, as reasonably requested by Lender to evidence, secure and perfect such pledge; provided, however, that in the case of either clause (A) or clause (B) above, such pledge (y) shall not prohibit, or require Lender’s consent to, a subsequent sale by the IP Purchaser of the IP, but shall only require that the net proceeds of any such subsequent sale which are payable to the IP Purchaser be delivered to Lender and be used as a prepayment of the Loan pursuant to the same terms and conditions as governed the payment of the IP Release Price (it being understood that any such net proceeds of any such subsequent sale shall be deemed a part of the previously-paid IP Release Price for all purposes under this Agreement), and (z) shall terminate upon the earlier of (I) one (1) year from the date of the IP Sale or (II) the repayment in full of the Debt;
(viii) Borrowers shall have paid all of the actual out-of-pocket reasonable third party legal fees and actual out-of-pocket reasonable third party expenses incurred by Lender in connection with (A) reviewing and processing any Sale Request with respect to an IP Sale, whether or not the IP Sale which is the subject of a Sale Request actually closes, (B) the satisfaction of any of the conditions set forth in this Section 2.5.3(a), and (C) providing all release documents in connection with any IP Sale as provided in Section 2.5.3(d) hereof;
(ix) No monetary Default, monetary First Mezzanine Default, monetary Second Mezzanine Default or monetary Third Mezzanine Default, and no Event of Default, First Mezzanine Event of Default, Second Mezzanine nor any Event of Default or Third Mezzanine Event of Default, shall have occurred and be continuing at the time of the submission by IP Borrower of a Sale Request or at the time of the closing of an IP Sale;
(x) There shall only be one (1) IP Sale;
(xi) The IP Purchaser shall enter into one or more royalty free license agreements, in form and substance reasonably satisfactory to Borrowers and Lender, applying the standards of a prudent commercial mortgage loan lender, pursuant to which such IP Purchaser shall license to each Borrower all of the IP that is reasonably necessary or desirable to operate its Property as then being operated and as then contemplated to be operated in the future (collectively, the “Purchaser Licensed IP”), and each applicable Borrower, at Borrowers’ sole cost and expense, shall execute and deliver, or cause to be executed and delivered, to and for the benefit of Lender, a security interest agreement covering such Purchaser Licensed IP, together with such other financing statements, documents and/or instruments reasonably required by Lender in order to perfect its security interest in the Purchaser Licensed IP and to enable Lender to foreclose on such Purchaser Licensed IP upon the occurrence and during the continuance of an Event of Default, all of the foregoing to be in form and substance reasonably satisfactory to Lender; and
(xii) Borrowers shall have delivered to Lender (A) any amendments to the Loan Documents deemed reasonably necessary by Lender in order to effectuate the release of the IP, and (B) all documents and information reasonably requested by Lender in order to verify the satisfaction of the foregoing conditions.
Appears in 1 contract
Conditions for Release. Notwithstanding anything to the contrary set forth in this Agreement or the other Loan Documents, in the event that IP Borrower shall desire to sell the IP (in whole but not in part) (an “IP Sale”) ), to either a bonafide third party purchaser (a “Bonafide IP Purchaser”) or to an Affiliate of Borrower or any other Restricted Party (an “Affiliate IP Purchaser”; and together with a Bonafide IP Purchaser, individually, an “IP Purchaser”), IP Borrower shall have the right, without the prior consent of Lender and without violating the Loan Documents, to sell the entire IP and obtain a release of the IP from the Liens of the Mortgage and the other Loan Documents encumbering the IP to an IP PurchaserIP, provided that all of the following conditions shall be satisfied with respect to such IP Sale:
(i) IP Borrower shall have submitted a Sale Request to Lender at least ten (10) Business Days prior to the anticipated date of such IP Sale, which shall include a copy of the contract of sale relating to such IP Sale and an Officer’s Certificate providing a certification that (A) as of the date of such Sale Request, no monetary Default, monetary First Mezzanine Default, monetary Second Mezzanine Default or monetary Third Mezzanine Default, and no Event of Default, First Mezzanine Event of Default, Second Mezzanine Event of Default or Third Mezzanine Event of Default, shall have occurred and be continuing continuing, (B) the proposed purchaser is a Bonafide IP Purchaser or an Affiliate IP Purchaser, as applicable, and (BC) the copy of the contract of sale relating to such IP Sale attached to such certification is true, correct and complete;
(ii) IP Borrower shall have delivered to Lender reasonably detailed information regarding the terms of, and the actual and reasonably anticipated costs and expenses associated with, such IP Sale in order to enable Lender to reasonably determine the IP Release Price with respect thereto, all of which shall be certified by IP Borrower to Lender as true, complete and correct;
(iii) All accrued and unpaid interest and any unpaid or unreimbursed amounts in respect of the Reduced Acquisition Loan and/or the Construction Loan and/or the First Mezzanine Loan and/or the Second Mezzanine Loan and/or the Third Mezzanine Loan and any other sum then due hereunder or under any of the other Loan Documents and/or under any of the First Mezzanine Loan Documents and/or under any of the Second Mezzanine Loan Documents and/or under any of the Third Mezzanine Loan Documents, including, without limitation, any applicable Breakage Costs, shall have been paid in full or shall have been arranged to be paid in full contemporaneously with the closing of such IP Sale; provided, however, if such IP Sale closes on a date which is not a Payment Date, Borrowers shall also have paid or shall have arranged to be paid contemporaneously with the closing of such IP Sale, interest on the IP Release Price to, but not including, the next succeeding first ninth (1st9th) day of a calendar month;
(iv) Intentionally DeletedIf the closing of such IP Sale shall occur prior to the Prepayment Fee Release Date, Borrowers shall have paid or shall have arranged to be paid contemporaneously with the closing of such IP Sale, the Prepayment Fee based on the IP Release Price;
(v) In If the IP Purchaser is a Bonafide IP Purchaser, in addition to the amounts set forth in the foregoing clause clauses (iii) and (iv), Borrowers shall have paid, or shall have arranged to be paid contemporaneously with the closing of the IP Sale, to Lender a release price with respect to the IP equal to the greater of the following (whichever of the following subclause (A) or (B) is greater, the “Bonafide IP Release Price”), which Bonafide IP Release Price shall be applied as contemplated by Section 2.4.3 hereof:
(A) (1) the gross sales price for the IP, less (2) the amount of all reasonable and customary closing costs in connection with such IP Sale actually paid by any Borrower to any Person who is not a Restricted Party or any Affiliate thereof; provided, however, that in no event shall such closing costs exceed three percent (3%) of such gross sales price; or
(B) one hundred twenty-five percent (125%) of the Allocated Loan Amount for the IP;
(vi) Intentionally DeletedIf the IP Purchaser is an Affiliate IP Purchaser, in addition to the amounts set forth in the foregoing clauses (iii) and (iv), Borrowers shall have paid, or shall have arranged to be paid contemporaneously with the closing of the IP Sale, to Lender a release price with respect to the IP equal to the greater of the following (whichever of the following subclause (A) or (B) is greater, the “Affiliate IP Release Price”; and whichever of the Bonafide IP Release Price or the Affiliate IP Release Price shall be applicable, the “IP Release Price”), which Affiliate IP Release Price shall be applied as contemplated by Section 2.4.3 hereof:
(A) (1) the gross sales price for the IP, less (2) the amount of all reasonable and customary closing costs in connection with such IP Sale actually paid by any Borrower to any Person who is not a Restricted Party or any Affiliate thereof; provided, however, that in no event shall such closing costs exceed three percent (3%) of such gross sales price; or
(B) Eighty Million Dollars ($80,000,000.00);
(vii) Intentionally DeletedIf the IP Purchaser is an Affiliate IP Purchaser, simultaneously with the closing of the IP Sale, (A) if such IP Purchaser is a Joint Venture, at Lender’s election, the ownership interest(s) of any Affiliate Joint Venture Counterparty shall be pledged to Lender as additional collateral for the Obligations, which pledge shall constitute a first priority Lien thereon, and Borrowers shall have (1) obtained the consent of each Unaffiliated Joint Venture Counterparty to such pledge, and (2) executed and delivered, and caused any such Affiliate Joint Venture Counterparty and Unaffiliated Joint Venture Counterparty to execute and deliver, such documents and instruments, and taken such further actions, and caused any such Affiliate Joint Venture Counterparty and Unaffiliated Joint Venture Counterparty to take any such further actions, as reasonably requested by Lender to evidence, secure and perfect such pledge of the ownership interest(s) of any Affiliate Joint Venture Counterparty, or (B) if such IP Purchaser is an Affiliate IP Purchaser of any kind, whether or not a Joint Venture, at Lender’s election, which in the case of an IP Purchaser who is a Joint Venture, would be in lieu of the foregoing clause (A), a security interest in any future sales proceeds from the sale of the IP shall be pledged to Lender as additional collateral for the Obligations, which pledge shall constitute a first priority Lien thereon, and Borrowers shall have executed such documents and instruments, and taken such further actions, as reasonably requested by Lender to evidence, secure and perfect such pledge; provided, however, that in the case of either clause (A) or clause (B) above, such pledge (y) shall not prohibit, or require Lender’s consent to, a subsequent sale by the IP Purchaser of the IP, but shall only require that the net proceeds of any such subsequent sale which are payable to the IP Purchaser be delivered to Lender and be used as a prepayment of the Loan pursuant to the same terms and conditions as governed the payment of the IP Release Price (it being understood that any such net proceeds of any such subsequent sale shall be deemed a part of the previously-paid IP Release Price for all purposes under this Agreement), and (z) shall terminate upon the earlier of (I) one (1) year from the date of the IP Sale or (II) the repayment in full of the Debt;
(viii) Borrowers shall have paid all of the actual out-of-pocket reasonable third party legal fees and actual out-of-pocket reasonable third party expenses incurred by Lender in connection with (A) reviewing and processing any Sale Request with respect to an IP Sale, whether or not the IP Sale which is the subject of a Sale Request actually closes, (B) the satisfaction of any of the conditions set forth in this Section 2.5.3(a), and (C) providing all release documents in connection with any IP Sale as provided in Section 2.5.3(d) hereof;
(ix) No monetary Default, monetary First Mezzanine Default, monetary Second Mezzanine Default or monetary Third Mezzanine Default, and no Event of Default, First Mezzanine Event of Default, Second Mezzanine Event of Default or Third Mezzanine Event of Default, shall have occurred and be continuing at the time of the submission by IP Borrower of a Sale Request or at the time of the closing of an IP Sale;
(x) There shall only be one (1) IP Sale;
(xi) The IP Purchaser shall enter into one or more royalty free license agreements, in form and substance reasonably satisfactory to Borrowers and Lender, applying the standards of a prudent commercial mortgage loan lender, pursuant to which such IP Purchaser shall license to each Borrower all of the IP that is reasonably necessary or desirable to operate its Property as then being operated and as then contemplated to be operated in the future (collectively, the “Purchaser Licensed IP”), and each applicable Borrower, at Borrowers’ sole cost and expense, shall execute and deliver, or cause to be executed and delivered, to and for the benefit of Lender, a security interest agreement covering such Purchaser Licensed IP, together with such other financing statements, documents and/or instruments reasonably required by Lender in order to perfect its security interest in the Purchaser Licensed IP and to enable Lender to foreclose on such Purchaser Licensed IP upon the occurrence and during the continuance of an Event of Default, all of the foregoing to be in form and substance reasonably satisfactory to Lender; and
(xii) Borrowers shall have delivered to Lender (A) any amendments to the Loan Documents deemed reasonably necessary by Lender in order to effectuate the release of the IP, and (B) all documents and information reasonably requested by Lender in order to verify the satisfaction of the foregoing conditions.
Appears in 1 contract
Conditions for Release. Notwithstanding anything to the contrary set forth in this Agreement or the other Loan Documents, in connection with the event that IP Borrower shall desire to sell Transfer of the IP (Six Acre Parcel and the Assumption in whole but not in part) (an “IP Sale”) to a bonafide third party purchaser (a “IP Purchaser”)accordance with Section 5.2.11 hereof, IP if applicable, Borrower shall have the right, without the prior consent of Lender and without violating the Loan Documents, to sell have the entire IP and obtain a release of the IP Five Acre Parcel released from the Liens lien of the Mortgage and the other Loan Documents encumbering (the IP to an IP Purchaser“Five Acre Release”), provided that all of the following conditions shall be satisfied with respect to such IP Salethe Five Acre Release:
(i) IP Borrower shall have submitted a Sale Request to Lender at At least ten (10) Business Days prior to the anticipated date of such IP SaleFive Acre Release, Borrower shall have submitted to Lender a written request for release (a “Release Request”), which Release Request shall include a copy of the contract of sale relating to such IP Sale and an Officer’s Certificate providing a certification that (A) as of the date of such Sale Release Request, no monetary Default, monetary First Mezzanine Default, monetary Second Mezzanine Default or monetary Third Mezzanine Default, and no Event of Default, First Mezzanine Event of Default, Second Mezzanine nor any Event of Default or Third Mezzanine Event of Default, shall have occurred and be continuing and (B) the copy of the contract of sale relating to such IP Sale attached to such certification is true, correct and completecontinuing;
(ii) IP Borrower shall have delivered to Lender reasonably detailed information regarding the terms of, and the actual and reasonably anticipated costs and expenses associated with, such IP Sale in order to enable Lender to reasonably determine the IP Release Price with respect thereto, all of which shall be certified by IP Borrower to Lender as true, complete and correct;
(iii) All accrued and unpaid interest and any unpaid or unreimbursed amounts in respect of the Reduced Acquisition Loan and/or the Construction Loan and/or the First Mezzanine Loan and/or the Second Mezzanine Loan and/or the Third Mezzanine Loan and any other sum then due hereunder or under any of the other Loan Documents and/or under any of the First Mezzanine Loan Documents and/or under any of the Second Mezzanine Loan Documents and/or under any of the Third Mezzanine Loan Documents, including, without limitation, any applicable Breakage Costs, shall have been paid in full or shall have been arranged to be paid in full contemporaneously with the closing of such IP SaleFive Acre Release; provided, however, if such IP Sale Five Acre Release closes on a date which is not a Payment Date, Borrowers Borrower shall also have paid or shall have arranged to be paid contemporaneously with the closing of such IP SaleFive Acre Release, interest on the IP Five Acre Release Price to, but not including, the next succeeding first ninth (1st9th) day of a calendar month;
(iviii) Intentionally DeletedIf the closing of such Five Acre Release shall occur prior to the Initial Maturity Date, Borrower shall have paid or shall have arranged to be paid contemporaneously with the closing of such Five Acre Release the Five Acre Prepayment Premium;
(viv) In addition to the amounts set forth in the foregoing clause clauses (ii) and (iii), Borrowers Borrower shall have paid, or shall have arranged to be paid contemporaneously with the closing of the IP Salesuch Five Acre Release, to Lender a release price with respect to the IP equal to the greater of the following (whichever of the following subclause (A) or (B) is greater, the “IP Five Acre Release Price”), which IP Release Price shall be applied as contemplated by Section 2.4.3 hereof:
(A) (1) the gross sales price for the IP, less (2) the amount of all reasonable and customary closing costs in connection with such IP Sale actually paid by any Borrower to any Person who is not a Restricted Party or any Affiliate thereof; provided, however, that in no event shall such closing costs exceed three percent (3%) of such gross sales price; or
(B) one hundred twenty-five percent (125%) of the Allocated Loan Amount for the IP;
(viv) Intentionally Deleted;
(vii) Intentionally Deleted;
(viii) Borrowers Borrower shall have paid all of the actual out-of-pocket reasonable third party legal fees and actual out-of-pocket reasonable third party expenses incurred by Lender in connection with (A) reviewing and processing any Sale Request with respect to an IP SaleRelease Request, whether or not the IP Sale which is the subject of a Sale Request Five Acre Release actually closes, (B) the satisfaction of any of the conditions set forth in this Section 2.5.3(a2.5.1(a), and (C) providing all release documents in connection with any IP Sale the Five Acre Release as provided in Section 2.5.3(d2.5.1(d) hereof;
(ixvi) No monetary Default, monetary First Mezzanine Default, monetary Second Mezzanine Default or monetary Third Mezzanine Default, and no Event of Default, First Mezzanine Event of Default, Second Mezzanine nor any Event of Default or Third Mezzanine Event of Default, shall have occurred and be continuing at the time of the submission by IP Borrower of a Sale Release Request or at the time of the closing of an IP Salesuch Five Acre Release;
(vii) After giving effect to the sale and release of the Five Acre Parcel, the Six Acre Parcel will (A) comply, in all material respects, with all zoning ordinances, including, without limitation, those related to parking, lot size and density, (B) constitute one or more separate tax parcels, and not be subject to any lien for taxes due or not yet due attributable to the Five Acre Parcel, and (C) comply, in all material respects, with all applicable Legal Requirements, including, without limitation, those relating to subdivision and land use, except to the extent of any legal non-conforming use permitted as of the Closing Date;
(viii) Borrower shall have certified to Lender that, with respect to the Six Acre Parcel, it continues to have or has obtained through one or more reciprocal easement or other agreements approved by Lender in its reasonable judgment, substantially the same (A) access for all of the Improvements (including any Permitted Temporary Improvements located on the Six Acre Parcel, unless no longer required by the Hotel/Casino Property Owner) or for any future Improvements which may be constructed on the Six Acre Parcel to parking, vehicular and pedestrian ingress and egress to and from (1) public roads, including, without limitation, Paradise Road and Xxxxxx Avenue (subject to certain restrictions approved by Lender in its reasonable discretion), (2) common areas, including, without limitation, the pool area at the Hard Rock Hotel and Casino (subject to certain restrictions approved by Lender in its reasonable discretion), and (3) a pedestrian bridge to be constructed on the Property and the Hotel/Casino Property, and the right to connect and attach to such portions of the pedestrian bridge constructed on the Five Acre Parcel and on the Hotel/Casino Property (subject to certain restrictions approved by Lender in its reasonable discretion), (B) utility services for all of the Improvements or for any future Improvements which may be constructed on the Six Acre Parcel, (C) water flow and drainage pipes, detention ponds and other drainage infrastructure for all of the Improvements or for any future Improvements which may be constructed on the Six Acre Parcel, and (D) rights for monumentation and directional signage for all of the Improvements or for any future Improvements which may be constructed on the Six Acre Parcel to be generally located at the Xxxxxx Avenue entrance to the Hotel/Casino Property and the Paradise Road entrance to the Property (subject to certain restrictions approved by Lender in its reasonable discretion), in each instance as exists as of the date immediately preceding such Five Acre Release, it being agreed that Lender will subordinate the lien of the Mortgage to any such reciprocal easement agreement or other agreement approved by Lender in its reasonable judgment;
(ix) Borrower shall deliver to Lender or shall cause Gansevoort Borrower to deliver to Lender, at Borrower’s (or Gansevoort Borrower’s, as the case may be) sole cost and expense, a new or updated ALTA/ASCM survey of the Six Acre Parcel, which survey shall substantially conform to Lender’s then-current requirements for surveys to be delivered in connection with its loans;
(x) There The Title Company shall only be one (1) IP Sale;issue an endorsement to the Title Insurance Policy regarding the validity of Lender’s lien on the Six Acre Parcel and any other endorsements reasonably requested by Lender in connection with the Five Acre Release; and
(xi) The IP Purchaser shall enter into one or more royalty free license agreements, in form and substance reasonably satisfactory to Borrowers and Lender, applying the standards of a prudent commercial mortgage loan lender, pursuant to which such IP Purchaser shall license to each Borrower all of the IP that is reasonably necessary or desirable to operate its Property as then being operated and as then contemplated to be operated in the future (collectively, the “Purchaser Licensed IP”), and each applicable Borrower, at Borrowers’ sole cost and expense, shall execute and deliver, or cause to be executed and delivered, to and for the benefit of Lender, a security interest agreement covering such Purchaser Licensed IP, together with such other financing statements, documents and/or instruments reasonably required by Lender in order to perfect its security interest in the Purchaser Licensed IP and to enable Lender to foreclose on such Purchaser Licensed IP upon the occurrence and during the continuance of an Event of Default, all of the foregoing to be in form and substance reasonably satisfactory to Lender; and
(xii) Borrowers shall have delivered to Lender (A) any amendments to the Loan Documents deemed reasonably necessary by Lender in order to effectuate the release of the IPFive Acre Parcel and/or to continue to retain all of its rights in the Six Acre Parcel, and (B) all documents and information reasonably requested by Lender in order to verify the satisfaction of the foregoing conditions.
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