Conditions Precedent to Release of Collateral Release Property from the Collateral. The obligation of the Lender to release a Collateral Release Property from the Collateral Pool by executing and delivering the Collateral Release Documents on the Release Closing Date is subject to the satisfaction of the following conditions precedent on or before the Release Closing Date: (a) Receipt by the Lender of the Release Price in accordance with Section 4.02; (b) Receipt by the Lender of all legal fees and expenses payable by the Borrowers in connection with the release pursuant to Section 10.03(b); (c) Receipt by the Lender on the Release Closing Date of one or more counterparts of each Collateral Release Document, dated as of the Release Closing Date, signed by each of the parties (other than the Lender) who is a party to such Collateral Release Document; (d) If reasonably required by the Lender, amendments to the Note and the Security Instruments, reflecting the release of the Collateral Release Property from the Collateral Pool and, as to any Security Instrument so amended, the receipt by the Lender of an endorsement to the Title Insurance Policy insuring the Security Instrument, amending the effective date of the Title Insurance Policy to the Release Closing Date and showing no additional exceptions to coverage other than the exceptions shown on the Closing Date and other exceptions approved by the Lender; (e) If the Lender reasonably determines the Collateral Release Property to be one phase of a project, and one or more other phases of the project are Mortgaged Properties which will remain in the Collateral Pool ("Remaining Mortgaged Properties"), the Lender's determination that the Remaining Mortgaged Properties can be operated separately from the Collateral Release Property and any other phases of the project which are not Mortgaged Properties. In making this determination, the Lender shall evaluate whether the Remaining Mortgaged Properties comply with the terms of Sections 203 and 208 of the DUS Guide, which, as of the date of this Agreement, require, among other things, that a phase which constitutes collateral for a loan made in accordance with the terms of the DUS Guide (i) have adequate ingress and egress to existing public roadways, either by location of the phase on a dedicated, all-weather road or by access to such a road by means of a satisfactory easement, (ii) have access which is sufficiently attractive and direct from major thoroughfares to be conducive to continued good marketing, (iii) have a location which is not (A) inferior to other phases, (B) such that inadequate maintenance of other phases would have a significant negative impact on the phase, and (C) such that the phase is visible only after passing through the other phases of the project and (iv) comply with such other issues as are dictated by prudent practice. Lender agrees that this paragraph (e) only applies to Harbour Club I and Harbour Club III; (f) Receipt by the Lender of endorsements to the Tie-In Endorsements of the Title Insurance Policies, if deemed reasonably necessary by the Lender, to reflect the release; (g) Receipt by the Lender on the Release Closing Date of a writing, dated as of the Release Closing Date, signed by the Borrowers, in the form attached as Exhibit N to this Agreement, pursuant to which the Borrowers confirm that their obligations under the Loan Documents are not adversely affected by the release of the Collateral Release Property from the Collateral; (h) Payment by the Borrowers of the Prepayment Premium, if any; and (i) The satisfaction of all of the following conditions: (i) The payment by the Borrowers of the Lender's fees and expenses payable in accordance with this Agreement for which Lender has presented an invoice on or before the Release Closing Date; (ii) There shall not be pending or threatened any condemnation or other taking, whether direct or indirect against any Mortgaged Property, and there shall not have occurred any casualty to any improvements located on any Mortgaged Property, which in the case of any such condemnation or taking or casualty would have or may reasonably be expected to have a Material Adverse Effect Portfolio Wide; (iii) The receipt by the Lender of the following, each dated as of the Release Closing Date, in form and substance satisfactory to the Lender in all respects: A) A Compliance Certificate; B) An Organizational Certificate; and C) Such other documents, instruments, approvals (and, if requested by the Lender, certified duplicates of executed copies thereof) and opinions as the Lender may reasonably request. (i) There shall exist no Event of Default or Potential Event of Default on the Release Closing Date and, after giving effect to the transaction requested in the Collateral Release Request, no Event of Default or Potential Event of Default shall have occurred provided that if a Potential Event of Default exists on the proposed Release Closing Date by virtue of a notice from Lender in accordance with Section 11.01(g) or in the event of the failure of any Borrower to comply with any Governmental Authority as set forth in Section 11.01(m) which Potential Event of Default in Lender's reasonable judgment (x) is with respect to a particular Mortgaged Property and (y) is being corrected by action instituted by the respective Borrower and is being pursued diligently and in good faith, then the existence of such Potential Event of Default shall not be a condition to such Collateral Release Request provided that Borrowers satisfy all other conditions set forth in this Section 4.03 and pledge and deposit with Lender an amount equal to the gross proceeds of the sale of the Collateral Release Property net of all third-party non-affiliate transaction costs minus the Release Price. Such deposit shall be held by Servicer in a custodial account pursuant to the DUS Guide and shall be (i) released to the Borrowing Agent if and when the Potential Event of Default is cured or (ii) if an Event of Default occurs, applied in Lender's discretion. In addition, if a Potential Event of Default has occurred that in the reasonable judgment of Lender is with respect to a particular Mortgaged Property, then the existence of such Potential Event of Default shall not be a condition to a Collateral Release Request for the release of such Collateral Release Property provided that the Borrowers satisfy all other conditions set forth in this Section 4.03.
Appears in 3 contracts
Samples: Term Loan Agreement (Goldman Sachs Group Inc), Term Loan Agreement (McNeil Real Estate Fund Xxvi Lp), Term Loan Agreement (Goldman Sachs Group Inc)
Conditions Precedent to Release of Collateral Release Property from the Collateral. The obligation of the Lender to release a Collateral Release Property from the Collateral Pool by executing and delivering the Collateral Release Documents on the Release Closing Date is Date, are subject to the satisfaction of the following conditions precedent on or before the Release Closing Date:
(a) Receipt by Immediately after giving effect to the Lender requested release the Coverage and LTV Tests will be satisfied, and in the case of any substitution effected pursuant to Section 7.04 of this Agreement, the Release Price in accordance with Section 4.02Coverage and LTV Tests are not adversely affected after giving effect to the proposed substitution;
(b) Receipt by the Lender of all legal fees and expenses payable by the Borrowers in connection with the release pursuant to Section 10.03(b)Release Price;
(c) Receipt by the Lender of the Release Fee for the Collateral Release Property and all legal fees and expenses payable by the Borrower in connection with the release pursuant to Section 16.04(b);
(d) Receipt by the Lender on the Release Closing Date of one or more counterparts of each Collateral Release Document, dated as of the Release Closing Date, signed by each of the parties (other than the Lender) who is a party to such Collateral Release Document;
(de) If reasonably required by the Lender, amendments to the Note Notes and the Security Instruments, reflecting the release of the Collateral Release Property from the Collateral Pool and, as to any Security Instrument so amended, the receipt by the Lender of an endorsement to the Title Insurance Policy insuring the Security Instrument, amending the effective date of the Title Insurance Policy to the Release Closing Date and showing no additional exceptions to coverage other than the exceptions shown on the Initial Closing Date Date, Permitted Liens and other exceptions approved by the Lender;
(ef) If the Lender reasonably determines the Collateral Release Property to be one phase of a project, and one or more other phases of the project are Mortgaged Properties which will remain in the Collateral Pool ("“Remaining Mortgaged Properties"”), the Lender's determination Lender must determine that the Remaining Mortgaged Properties can be operated separately from the Collateral Release Property and any other phases of the project which are not Mortgaged Properties. In making this determination, the Lender shall evaluate whether the Remaining Mortgaged Properties comply with the terms of Sections 203 and 208 of the DUS Guide, which, as of the date of this Agreement, require, among other things, that a phase which constitutes collateral for a loan made in accordance with the terms of the DUS Guide (i) have adequate ingress and egress to existing public roadways, either by location of the phase on a dedicated, all-weather road or by access to such a road by means of a satisfactory easement, (ii) have access which is sufficiently attractive and direct from major thoroughfares to be conducive to continued good marketing, (iii) have a location which is not (A) inferior to other phases, (B) such that inadequate maintenance of other phases would have a significant negative impact on the phase, and (C) such that the phase is visible only after passing through the other phases of the project and (iv) comply with such other issues as are dictated by prudent practice. Lender agrees that this paragraph (e) only applies to Harbour Club I and Harbour Club III;
(fg) Receipt by the Lender of endorsements to the Tie-In Endorsements of the Title Insurance Policies, if deemed reasonably necessary by the Lender, to reflect the release;
(gh) Receipt by the Lender on the Release Closing Date of a writing, dated as of the Release Closing Date, signed by the BorrowersBorrower Parties, in the form attached as Exhibit N U to this Agreement, pursuant to which the Borrowers Borrower Parties confirm that their obligations under the Loan Documents are not adversely affected by the release of the Collateral Release Property from the Collateral;
(hi) Payment by The remaining Mortgaged Properties in the Borrowers of Collateral Pool shall satisfy the Prepayment Premium, if any; andthen-existing Geographical Diversification Requirements;
(ij) The satisfaction of all of the following conditions:
(i) The payment by the Borrowers of the Lender's fees and expenses payable applicable General Conditions set forth in accordance with this Agreement for which Lender has presented an invoice on or before the Release Closing DateArticle XI;
(iik) There shall not be pending or threatened any condemnation or Notwithstanding the other takingprovisions of this Section 7.03, whether direct or indirect against any Mortgaged Property, and there shall not have occurred any casualty to any improvements located on any Mortgaged Property, which in the case no release of any such condemnation or taking or casualty would have or may reasonably be expected to have a Material Adverse Effect Portfolio Wide;
(iii) The receipt by the Lender of the followingMortgaged Properties shall be made unless the Borrower has provided title insurance, taking into account Tie-In Endorsements, to Lender in respect of each dated as of the Release Closing Date, in form and substance satisfactory to the Lender in all respects:
A) A Compliance Certificate;
B) An Organizational Certificate; and
C) Such other documents, instruments, approvals (and, if requested by the Lender, certified duplicates of executed copies thereof) and opinions as the Lender may reasonably request.
(i) There shall exist no Event of Default or Potential Event of Default on the Release Closing Date and, after giving effect to the transaction requested remaining Mortgaged Properties in the Collateral Release Request, no Event of Default or Potential Event of Default shall have occurred provided that if a Potential Event of Default exists on the proposed Release Closing Date by virtue of a notice from Lender Pool in accordance with Section 11.01(g) or in the event of the failure of any Borrower to comply with any Governmental Authority as set forth in Section 11.01(m) which Potential Event of Default in Lender's reasonable judgment (x) is with respect to a particular Mortgaged Property and (y) is being corrected by action instituted by the respective Borrower and is being pursued diligently and in good faith, then the existence of such Potential Event of Default shall not be a condition to such Collateral Release Request provided that Borrowers satisfy all other conditions set forth in this Section 4.03 and pledge and deposit with Lender an amount equal to the gross proceeds 125% of the sale Initial Valuation of the Collateral Release Property net of all third-party non-affiliate transaction costs minus the Release Price. Such deposit shall be held by Servicer in a custodial account pursuant to the DUS Guide and shall be (i) released to the Borrowing Agent if and when the Potential Event of Default is cured or (ii) if an Event of Default occurs, applied in Lender's discretion. In addition, if a Potential Event of Default has occurred that in the reasonable judgment of Lender is with respect to a particular Mortgaged Property, then the existence each of such Potential Event of Default shall not be a condition to a Collateral Release Request for the release of such Collateral Release Property provided that the Borrowers satisfy all other conditions set forth in this Section 4.03remaining Mortgaged Properties.
Appears in 2 contracts
Samples: Master Credit Facility Agreement (Mid America Apartment Communities Inc), Master Credit Facility Agreement (Mid America Apartment Communities Inc)
Conditions Precedent to Release of Collateral Release Property from the Collateral. The obligation of the Lender to release a Collateral Release Property from the Collateral Pool by executing and delivering the Collateral Release Documents on the Release Closing Date is Date, are subject to the satisfaction of the following conditions precedent on or before the Release Closing Date:
(a) Immediately after giving effect to the requested release the Coverage and LTV Tests will be satisfied, and in the case of any substitution effected pursuant to Section 7.04 of this Agreement, the Coverage and LTV Tests are not adversely affected after giving effect to the proposed substitution;
(b) Receipt by the Lender of the Release Price in accordance with Section 4.02Price;
(bc) Receipt by the Lender of all legal fees and expenses payable by the Borrowers Borrower in connection with the release pursuant to Section 10.03(b16.04(b);
(cd) Receipt by the Lender on the Release Closing Date of one or more counterparts of each Collateral Release Document, dated as of the Release Closing Date, signed by each of the parties (other than the Lender) who is a party to such Collateral Release Document;
(de) If reasonably required by the Lender, amendments to the Note Notes and the Security Instruments, reflecting the release of the Collateral Release Property from the Collateral Pool and, as to any Security Instrument so amended, the receipt by the Lender of an endorsement to the Title Insurance Policy insuring the Security Instrument, amending the effective date of the Title Insurance Policy to the Release Closing Date and showing no additional exceptions to coverage other than the exceptions shown on the Initial Closing Date and other exceptions approved by the Lender;
(ef) If the Lender reasonably determines the Collateral Release Property to be one phase of a project, and one or more other phases of the project are Mortgaged Properties which will remain in the Collateral Pool ("“Remaining Mortgaged Properties"”), the Lender's ’s determination that the Remaining Mortgaged Properties can be operated separately from the Collateral Release Property and any other phases of the project which are not Mortgaged Properties. In making this determination, the Lender shall evaluate whether the Remaining Mortgaged Properties comply with the terms of Sections 203 and 208 of the DUS Guide, which, as of the date of this Agreement, require, among other things, that a phase which constitutes collateral for a loan made in accordance with the terms of the DUS Guide (i) have adequate ingress and egress to existing public roadways, either by location of the phase on a dedicated, all-weather road or by access to such a road by means of a satisfactory easement, (ii) have access which is sufficiently attractive and direct from major thoroughfares to be conducive to continued good marketing, (iii) have a location which is not (A) inferior to other phases, (B) such that inadequate maintenance of other phases would have a significant negative impact on the phase, and (C) such that the phase is visible only after passing through the other phases of the project and (iv) comply with such other issues as are dictated by prudent practice. Lender agrees that this paragraph (e) only applies to Harbour Club I and Harbour Club III;
(fg) Receipt by the Lender of endorsements to the Tie-In Endorsements of the Title Insurance Policies, if deemed reasonably necessary by the Lender, to reflect the release;
(gh) Receipt by the Lender on the Release Closing Date of a writing, dated as of the Release Closing Date, signed by the BorrowersBorrower, in the form attached as Exhibit N U to this Agreement, pursuant to which the Borrowers confirm Borrower confirms that their its obligations under the Loan Documents are not adversely affected by the release of the Collateral Release Property from the Collateral;
(hi) Payment by The remaining Mortgaged Properties in the Borrowers of Collateral Pool shall satisfy the Prepayment Premium, if any; andthen-existing Geographical Diversification Requirements;
(ij) The satisfaction of all of the following conditions:
(i) The payment by the Borrowers of the Lender's fees and expenses payable applicable General Conditions set forth in accordance with this Agreement for which Lender has presented an invoice on or before the Release Closing Date;
(ii) There shall not be pending or threatened any condemnation or other taking, whether direct or indirect against any Mortgaged Property, and there shall not have occurred any casualty to any improvements located on any Mortgaged Property, which in the case of any such condemnation or taking or casualty would have or may reasonably be expected to have a Material Adverse Effect Portfolio Wide;
(iii) The receipt by the Lender of the following, each dated as of the Release Closing Date, in form and substance satisfactory to the Lender in all respects:
A) A Compliance Certificate;
B) An Organizational CertificateArticle XI; and
C(k) Such Notwithstanding the other documentsprovisions of this Section 7.03, instruments, approvals (and, if requested by no release of any of the Lender, certified duplicates Mortgaged Properties shall be made unless the Borrower has provided title insurance to Lender in respect of executed copies thereof) and opinions as each of the Lender may reasonably request.
(i) There shall exist no Event of Default or Potential Event of Default on the Release Closing Date and, after giving effect to the transaction requested remaining Mortgage Properties in the Collateral Release Request, no Event of Default or Potential Event of Default shall have occurred provided that if a Potential Event of Default exists on the proposed Release Closing Date by virtue of a notice from Lender Pool in accordance with Section 11.01(g) or in the event of the failure of any Borrower to comply with any Governmental Authority as set forth in Section 11.01(m) which Potential Event of Default in Lender's reasonable judgment (x) is with respect to a particular Mortgaged Property and (y) is being corrected by action instituted by the respective Borrower and is being pursued diligently and in good faith, then the existence of such Potential Event of Default shall not be a condition to such Collateral Release Request provided that Borrowers satisfy all other conditions set forth in this Section 4.03 and pledge and deposit with Lender an amount equal to the gross proceeds 150% of the sale Initial Value of the Collateral Release Property net of all third-party non-affiliate transaction costs minus the Release Price. Such deposit shall be held by Servicer in a custodial account pursuant to the DUS Guide and shall be (i) released to the Borrowing Agent if and when the Potential Event of Default is cured or (ii) if an Event of Default occurs, applied in Lender's discretion. In addition, if a Potential Event of Default has occurred that in the reasonable judgment of Lender is with respect to a particular each such Mortgaged Property, then the existence of such Potential Event of Default shall not be a condition to a Collateral Release Request for the release of such Collateral Release Property provided that the Borrowers satisfy all other conditions set forth in this Section 4.03.
Appears in 2 contracts
Samples: Master Credit Facility Agreement (United Dominion Realty Trust Inc), Master Credit Facility Agreement (United Dominion Realty Trust Inc)
Conditions Precedent to Release of Collateral Release Property from the Collateral. The obligation of the Lender to release a Collateral Release Property from the Collateral Pool by executing and delivering the Collateral Release Documents on the Release Closing Date is Date, are subject to the satisfaction of the following conditions precedent on or before the Release Closing Date:
(a) Receipt by Immediately after giving effect to the Lender requested release the Coverage and LTV Tests will be satisfied, and in the case of any substitution effected pursuant to Section 7.04 of this Agreement, the Release Price in accordance with Section 4.02Coverage and LTV Tests are not adversely affected after giving effect to the proposed substitution;
(b) Receipt by the Lender of all legal fees and expenses payable by the Borrowers in connection with the release pursuant to Section 10.03(b)Release Price;
(c) Receipt by the Lender of the Release Fee for the Collateral Release Property and all legal fees and expenses payable by the Borrower in connection with the release pursuant to Section 16.04(b);
(d) Receipt by the Lender on the Release Closing Date of one or more counterparts of each Collateral Release Document, dated as of the Release Closing Date, signed by each of the parties (other than the Lender) who is a party to such Collateral Release Document;
(de) If reasonably required by the Lender, amendments to the Note Notes and the Security Instruments, reflecting the release of the Collateral Release Property from the Collateral Pool and, as to any Security Instrument so amended, the receipt by the Lender of an endorsement to the Title Insurance Policy insuring the Security Instrument, amending the effective date of the Title Insurance Policy to the Release Closing Date and showing no additional exceptions to coverage other than the exceptions shown on the Initial Closing Date and other exceptions approved by the Lender;
(ef) If the Lender reasonably determines the Collateral Release Property to be one phase of a project, and one or more other phases of the project are Mortgaged Properties which will remain in the Collateral Pool ("Remaining Mortgaged Properties"), the Lender's determination that the Remaining Mortgaged Properties can be operated separately from the Collateral Release Property and any other phases of the project which are not Mortgaged Properties. In making this determination, the Lender shall evaluate whether the Remaining Mortgaged Properties comply with the terms of Sections 203 and 208 of the DUS Guide, which, as of the date of this Agreement, require, among other things, that a phase which constitutes collateral for a loan made in accordance with the terms of the DUS Guide (i) have adequate ingress and egress to existing public roadways, either by location of the phase on a dedicated, all-weather road or by access to such a road by means of a satisfactory easement, (ii) have access which is sufficiently attractive and direct from major thoroughfares to be conducive to continued good marketing, (iii) have a location which is not (A) inferior to other phases, (B) such that inadequate maintenance of other phases would have a significant negative impact on the phase, and (C) such that the phase is visible only after passing through the other phases of the project and (iv) comply with such other issues as are dictated by prudent practice. Lender agrees that this paragraph (e) only applies to Harbour Club I and Harbour Club III;
(fg) Receipt by the Lender of endorsements to the Tie-In Endorsements of the Title Insurance Policies, if deemed reasonably necessary by the Lender, to reflect the release;
(gh) Receipt by the Lender on the Release Closing Date of a writing, dated as of the Release Closing Date, signed by the BorrowersBorrower Parties, in the form attached as Exhibit N U to this Agreement, pursuant to which the Borrowers Borrower Parties confirm that their obligations under the Loan Documents are not adversely affected by the release of the Collateral Release Property from the Collateral;
(hi) Payment by The remaining Mortgaged Properties in the Borrowers of Collateral Pool shall satisfy the Prepayment Premium, if anythen-existing Geographical Diversification Requirements; and
(ij) The satisfaction of all of the following conditions:
(i) The payment by the Borrowers of the Lender's fees and expenses payable in accordance with this Agreement for which Lender has presented an invoice on or before the Release Closing Date;
(ii) There shall not be pending or threatened any condemnation or other taking, whether direct or indirect against any Mortgaged Property, and there shall not have occurred any casualty to any improvements located on any Mortgaged Property, which in the case of any such condemnation or taking or casualty would have or may reasonably be expected to have a Material Adverse Effect Portfolio Wide;
(iii) The receipt by the Lender of the following, each dated as of the Release Closing Date, in form and substance satisfactory to the Lender in all respects:
A) A Compliance Certificate;
B) An Organizational Certificate; and
C) Such other documents, instruments, approvals (and, if requested by the Lender, certified duplicates of executed copies thereof) and opinions as the Lender may reasonably request.
(i) There shall exist no Event of Default or Potential Event of Default on the Release Closing Date and, after giving effect to the transaction requested in the Collateral Release Request, no Event of Default or Potential Event of Default shall have occurred provided that if a Potential Event of Default exists on the proposed Release Closing Date by virtue of a notice from Lender in accordance with Section 11.01(g) or in the event of the failure of any Borrower to comply with any Governmental Authority as applicable General Conditions set forth in Section 11.01(m) which Potential Event of Default in Lender's reasonable judgment (x) is with respect to a particular Mortgaged Property and (y) is being corrected by action instituted by the respective Borrower and is being pursued diligently and in good faith, then the existence of such Potential Event of Default shall not be a condition to such Collateral Release Request provided that Borrowers satisfy all other conditions set forth in this Section 4.03 and pledge and deposit with Lender an amount equal to the gross proceeds of the sale of the Collateral Release Property net of all third-party non-affiliate transaction costs minus the Release Price. Such deposit shall be held by Servicer in a custodial account pursuant to the DUS Guide and shall be (i) released to the Borrowing Agent if and when the Potential Event of Default is cured or (ii) if an Event of Default occurs, applied in Lender's discretion. In addition, if a Potential Event of Default has occurred that in the reasonable judgment of Lender is with respect to a particular Mortgaged Property, then the existence of such Potential Event of Default shall not be a condition to a Collateral Release Request for the release of such Collateral Release Property provided that the Borrowers satisfy all other conditions set forth in this Section 4.03Article XI.
Appears in 1 contract
Samples: Master Credit Facility Agreement (Walden Residential Properties Inc)
Conditions Precedent to Release of Collateral Release Property from the Collateral. The obligation of the Lender to release a Collateral Release Property from the Collateral Pool by executing and delivering the Collateral Release Documents on the Release Closing Date is Date, are subject to the satisfaction of the following conditions precedent on or before the Release Closing Date:
(a) Receipt by Immediately after giving effect to the Lender requested release the Coverage and LTV Tests will be satisfied, and in the case of any substitution effected pursuant to Section 7.04 of this Agreement, the Release Price in accordance with Section 4.02Coverage and LTV Tests are not adversely affected after giving effect to the proposed substitution;
(b) Receipt by the Lender of all legal fees and expenses payable by the Borrowers in connection with the release pursuant to Section 10.03(b)Release Price;
(c) Receipt by the Lender of the Release Fee for the Collateral Release Property and all legal fees and expenses payable by the Borrower in connection with the release pursuant to Section 16.04(b);
(d) Receipt by the Lender on the Release Closing Date of one or more counterparts of each Collateral Release Document, dated as of the Release Closing Date, signed by each of the parties (other than the Lender) who is a party to such Collateral Release Document;
(de) If reasonably required by the Lender, amendments to the Note Notes and the Security Instruments, reflecting the release of the Collateral Release Property from the Collateral Pool and, as to any Security Instrument so amended, the receipt by the Lender of an endorsement to the Title Insurance Policy insuring the Security Instrument, amending the effective date of the Title Insurance Policy to the Release Closing Date and showing no additional exceptions to coverage other than the exceptions shown on the Initial Closing Date Date, Permitted Liens, and other exceptions approved by the Lender;
(ef) If the Lender reasonably determines the Collateral Release Property to be one phase of a project, and one or more other phases of the project are Mortgaged Properties which will remain in the Collateral Pool ("“Remaining Mortgaged Properties"”), the Lender's determination Lender must determine that the Remaining Mortgaged Properties can be operated separately from the Collateral Release Property and any other phases of the project which are not Mortgaged Properties. In making this determination, the Lender shall evaluate whether the Remaining Mortgaged Properties comply with the terms of Sections 203 and 208 of the DUS Guide, which, as of the date of this Agreement, require, among other things, that a phase which constitutes collateral for a loan made in accordance with the terms of the DUS Guide (i) have adequate ingress and egress to existing public roadways, either by location of the phase on a dedicated, all-weather road or by access to such a road by means of a satisfactory easement, (ii) have access which is sufficiently attractive and direct from major thoroughfares to be conducive to continued good marketing, (iii) have a location which is not (A) inferior to other phases, (B) such that inadequate maintenance of other phases would have a significant negative impact on the phase, and (C) such that the phase is visible only after passing through the other phases of the project and (iv) comply with such other issues as are dictated by prudent practice. Lender agrees that this paragraph (e) only applies to Harbour Club I and Harbour Club III;
(f) Receipt by the Lender of endorsements to the Tie-In Endorsements of the Title Insurance Policies, if deemed reasonably necessary by the Lender, to reflect the release;
(g) Receipt by the Lender on the Release Closing Date of a writing, dated as of the Release Closing Date, signed by the Borrowers, in the form attached as Exhibit N to this Agreement, pursuant to which the Borrowers confirm that their obligations under the Loan Documents are not adversely affected by the release of the Collateral Release Property from the Collateral;
(h) Payment by the Borrowers of the Prepayment Premium, if any; and
(i) The satisfaction of all of the following conditions:
(i) The payment by the Borrowers of the Lender's fees and expenses payable in accordance with this Agreement for which Lender has presented an invoice on or before the Release Closing Date;
(ii) There shall not be pending or threatened any condemnation or other taking, whether direct or indirect against any Mortgaged Property, and there shall not have occurred any casualty to any improvements located on any Mortgaged Property, which in the case of any such condemnation or taking or casualty would have or may reasonably be expected to have a Material Adverse Effect Portfolio Wide;
(iii) The receipt by the Lender of the following, each dated as of the Release Closing Date, in form and substance satisfactory to the Lender in all respects:
A) A Compliance Certificate;
B) An Organizational Certificate; and
C) Such other documents, instruments, approvals (and, if requested by the Lender, certified duplicates of executed copies thereof) and opinions as the Lender may reasonably request.
(i) There shall exist no Event of Default or Potential Event of Default on the Release Closing Date and, after giving effect to the transaction requested in the Collateral Release Request, no Event of Default or Potential Event of Default shall have occurred provided that if a Potential Event of Default exists on the proposed Release Closing Date by virtue of a notice from Lender in accordance with Section 11.01(g) or in the event of the failure of any Borrower to comply with any Governmental Authority as set forth in Section 11.01(m) which Potential Event of Default in Lender's reasonable judgment (x) is with respect to a particular Mortgaged Property and (y) is being corrected by action instituted by the respective Borrower and is being pursued diligently and in good faith, then the existence of such Potential Event of Default shall not be a condition to such Collateral Release Request provided that Borrowers satisfy all other conditions set forth in this Section 4.03 and pledge and deposit with Lender an amount equal to the gross proceeds of the sale of the Collateral Release Property net of all third-party non-affiliate transaction costs minus the Release Price. Such deposit shall be held by Servicer in a custodial account pursuant to the DUS Guide and shall be (i) released to the Borrowing Agent if and when the Potential Event of Default is cured or (ii) if an Event of Default occurs, applied in Lender's discretion. In addition, if a Potential Event of Default has occurred that in the reasonable judgment of Lender is with respect to a particular Mortgaged Property, then the existence of such Potential Event of Default shall not be a condition to a Collateral Release Request for the release of such Collateral Release Property provided that the Borrowers satisfy all other conditions set forth in this Section 4.03.
Appears in 1 contract
Samples: Master Credit Facility Agreement (Mid America Apartment Communities Inc)
Conditions Precedent to Release of Collateral Release Property from the Collateral. The obligation of the Lender to release a Collateral Release Property from the Collateral Pool by executing and delivering the Collateral Release Documents on the Release Closing Date is Date, are subject to the satisfaction of the following conditions precedent on or before the Release Closing Date:
(a) Immediately after giving effect to the requested release the Coverage and LTV Tests will be satisfied, and in the case of any substitution effected pursuant to Section 7.04 of this Agreement, the Coverage and LTV Tests are not adversely affected after giving effect to the proposed substitution;
(b) Receipt by the Lender of the Release Price in accordance with Section 4.02Price;
(bc) Receipt by the Lender of all legal fees and expenses payable by the Borrowers Borrower in connection with the release pursuant to Section 10.03(b16.04(b);
(cd) Receipt by the Lender on the Release Closing Date of one or more counterparts of each Collateral Release Document, dated as of the Release Closing Date, signed by each of the parties (other than the Lender) who is a party to such Collateral Release Document;
(de) If reasonably required by the Lender, amendments to the Note Notes and the Security Instruments, reflecting the release of the Collateral Release Property from the Collateral Pool and, as to any Security Instrument so amended, the receipt by the Lender of an endorsement to the Title Insurance Policy insuring the Security Instrument, amending the effective date of the Title Insurance Policy to the Release Closing Date and showing no additional exceptions to coverage other than the exceptions shown on the Initial Closing Date and other exceptions approved by the Lender;
(ef) If the Lender reasonably determines the Collateral Release Property to be one phase of a project, and one or more other phases of the project are Mortgaged Properties which will remain in the Collateral Pool ("“Remaining Mortgaged Properties"”), the Lender's ’s determination that the Remaining Mortgaged Properties can be operated separately from the Collateral Release Property and any other phases of the project which are not Mortgaged Properties. In making this determination, the Lender shall evaluate whether the Remaining Mortgaged Properties comply with the terms of Sections 203 and 208 of the DUS Guide, which, as of the date of this Agreement, require, among other things, that a phase which constitutes collateral for a loan made in accordance with the terms of the DUS Guide (i) have adequate ingress and egress to existing public roadways, either by location of the phase on a dedicated, all-weather road or by access to such a road by means of a satisfactory easement, (ii) have access which is sufficiently attractive and direct from major thoroughfares to be conducive to continued good marketing, (iii) have a location which is not (A) inferior to other phases, (B) such that inadequate maintenance of other phases would have a significant negative impact on the phase, and (C) such that the phase is visible only after passing through the other phases of the project and (iv) comply with such other issues as are dictated by prudent practice. Lender agrees that this paragraph (e) only applies to Harbour Club I and Harbour Club III;
(fg) Receipt by the Lender of endorsements to the Tie-In Endorsements of the Title Insurance Policies, if deemed reasonably necessary by the Lender, to reflect the release;
(gh) Receipt by the Lender on the Release Closing Date of a writing, dated as of the Release Closing Date, signed by the BorrowersBorrower, in the form attached as Exhibit N U to this Agreement, pursuant to which the Borrowers confirm Borrower confirms that their its obligations under the Loan Documents are not adversely affected by the release of the Collateral Release Property from the Collateral;
(hi) Payment by The remaining Mortgaged Properties in the Borrowers of Collateral Pool shall satisfy the Prepayment Premium, if any; andthen-existing Geographical Diversification Requirements;
(ij) The satisfaction of all of the following conditions:
(i) The payment by the Borrowers of the Lender's fees and expenses payable applicable General Conditions set forth in accordance with this Agreement for which Lender has presented an invoice on or before the Release Closing Date;
(ii) There shall not be pending or threatened any condemnation or other taking, whether direct or indirect against any Mortgaged Property, and there shall not have occurred any casualty to any improvements located on any Mortgaged Property, which in the case of any such condemnation or taking or casualty would have or may reasonably be expected to have a Material Adverse Effect Portfolio Wide;
(iii) The receipt by the Lender of the following, each dated as of the Release Closing Date, in form and substance satisfactory to the Lender in all respects:
A) A Compliance Certificate;
B) An Organizational CertificateArticle XI; and
C(k) Such Notwithstanding the other documentsprovisions of this Section 7.03, instrumentsno release of any of the Mortgaged Properties shall be made unless the Borrower has provided title insurance, approvals (andtaking into account tie-in endorsements, if requested by to Lender in respect of each of the Lender, certified duplicates of executed copies thereof) and opinions as the Lender may reasonably request.
(i) There shall exist no Event of Default or Potential Event of Default on the Release Closing Date and, after giving effect to the transaction requested remaining Mortgage Properties in the Collateral Release Request, no Event of Default or Potential Event of Default shall have occurred provided that if a Potential Event of Default exists on the proposed Release Closing Date by virtue of a notice from Lender Pool in accordance with Section 11.01(g) or in the event of the failure of any Borrower to comply with any Governmental Authority as set forth in Section 11.01(m) which Potential Event of Default in Lender's reasonable judgment (x) is with respect to a particular Mortgaged Property and (y) is being corrected by action instituted by the respective Borrower and is being pursued diligently and in good faith, then the existence of such Potential Event of Default shall not be a condition to such Collateral Release Request provided that Borrowers satisfy all other conditions set forth in this Section 4.03 and pledge and deposit with Lender an amount equal to the gross proceeds 150% of the sale Initial Value of the Collateral Release Property net of all third-party non-affiliate transaction costs minus the Release Price. Such deposit shall be held by Servicer in a custodial account pursuant to the DUS Guide and shall be (i) released to the Borrowing Agent if and when the Potential Event of Default is cured or (ii) if an Event of Default occurs, applied in Lender's discretion. In addition, if a Potential Event of Default has occurred that in the reasonable judgment of Lender is with respect to a particular each such Mortgaged Property, then the existence of such Potential Event of Default shall not be a condition to a Collateral Release Request for the release of such Collateral Release Property provided that the Borrowers satisfy all other conditions set forth in this Section 4.03.
Appears in 1 contract
Samples: Master Credit Facility Agreement (United Dominion Realty Trust Inc)
Conditions Precedent to Release of Collateral Release Property from the Collateral. The obligation of the Lender Fannie Mae to release a Collateral Release Property from the Collateral Pool by executing and delivering the Collateral Release Documents on the Release Closing Date is Date, are subject to the satisfaction of the following conditions precedent on or before the Release Closing Date:
(a) Receipt by Immediately after giving effect to the Lender requested release the Coverage and LTV Tests will be satisfied, and in the case of any substitution effected pursuant to Section 6.4 of this Agreement, the Release Price in accordance with Section 4.02Coverage and LTV Tests are not adversely affected after giving effect to the proposed substitution;
(b) Receipt by Fannie Mae of the Lender Release Price;
(c) Receipt by Fannie Mae of the Release Fee for the Collateral Release Property and all legal fees and expenses payable by the Borrowers Borrower in connection with the release pursuant to Section 10.03(b3.3(5);
(cd) Receipt by the Lender Fannie Mae on the Release Closing Date of one or more counterparts of each Collateral Release Document, dated as of the Release Closing Date, signed by each of the parties (other than the LenderFannie Mae) who is a party to such Collateral Release Document;
(de) If reasonably required by the LenderFannie Mae, amendments to the Note Notes and the Security InstrumentsReimbursement Mortgages, reflecting the release of the Collateral Release Property from the Collateral Pool and, as to any Security Instrument Reimbursement Mortgage, so amended, the receipt by the Lender Fannie Mae of an endorsement to the Title Insurance Policy insuring the Security InstrumentReimbursement Mortgage, amending the effective date of the Title Insurance Policy to the Release Closing Date and showing no additional exceptions to coverage other than the exceptions shown on the Initial Closing Date and other exceptions approved by the LenderFannie Mae;
(ef) If the Lender reasonably Fannie Mae determines the Collateral Release Property to be one phase of a project, and one or more other phases of the project are Mortgaged Properties which will remain in the Collateral Pool ("“Remaining Mortgaged Properties"”), the Lender's determination Fannie Mae must determine that the Remaining Mortgaged Properties can be operated separately from the Collateral Release Property and any other phases of the project which are not Mortgaged Properties. In making this determination, the Lender shall evaluate whether the Remaining Mortgaged Properties comply with the terms of Sections 203 203, Part III and 208 208, Part III of the DUS Guide, which, as of the date of this Agreement, require, among other things, that a phase which constitutes collateral for a loan made in accordance with the terms of the DUS Guide (i) have adequate ingress and egress to existing public roadways, either by location of the phase on a dedicated, all-weather road or by access to such a road by means of a satisfactory easement, (ii) have access which is sufficiently attractive and direct from major thoroughfares to be conducive to continued good marketing, (iii) have a location which is not (A) inferior to other phases, (B) such that inadequate maintenance of other phases would have a significant negative impact on the phase, and (C) such that the phase is visible only after passing through the other phases of the project and (iv) comply with such other issues as are dictated by prudent practice. Lender agrees that this paragraph (e) only applies to Harbour Club I and Harbour Club III;
(fg) Receipt by the Lender Fannie Mae of endorsements to the Tie-In Endorsements of the Title Insurance Policies, if deemed reasonably necessary by the LenderFannie Mae, to reflect the release;
(gh) Receipt by the Lender Fannie Mae on the Release Closing Date of a writing, dated as of the Release Closing Date, signed by the BorrowersBorrower, in the form attached as Exhibit N K to this Agreement, pursuant to which the Borrowers Borrower confirm that their obligations Obligations under the Loan Borrower Documents are not adversely affected by the release of the Collateral Release Property from the Collateral;
(h) Payment by the Borrowers of the Prepayment Premium, if any; and
(i) The satisfaction of all of remaining Mortgaged Properties in the following conditions:
(i) The payment by Collateral Pool shall satisfy the Borrowers of the Lender's fees and expenses payable in accordance with this Agreement for which Lender has presented an invoice on or before the Release Closing Datethen-existing Geographical Diversification Requirements;
(iij) There shall not be pending or threatened any condemnation or other taking, whether direct or indirect against any Mortgaged Property, and there shall not have occurred any casualty to any improvements located on any Mortgaged Property, which in the case of any such condemnation or taking or casualty would have or may reasonably be expected to have a Material Adverse Effect Portfolio Wide;
(iii) The receipt by the Lender of the following, each dated as of the Release Closing Date, in form and substance satisfactory to the Lender in all respects:
A) A Compliance Certificate;
B) An Organizational Certificate; and
C) Such other documents, instruments, approvals (and, if requested by the Lender, certified duplicates of executed copies thereof) and opinions as the Lender may reasonably request.
(i) There shall exist no Event of No Default or Potential Event of Default on the Release Closing Date and, after giving effect to the transaction requested in the Collateral Release Request, no Event of Default or Potential Event of Default shall have occurred provided that if a Potential Event and be continuing;
(k) All documentation relating to the release is acceptable to Fannie Mae in all respects, including legal opinions, release documentation, and any amendments to this Agreement or the Borrower Documents;
(l) If all of Default exists on the proposed Release Closing Date by virtue of a notice from Lender outstanding Bonds relating to the Collateral Released Property shall have been paid, such payment shall have been with Available Moneys, the Indenture relating to such Bonds shall have been cancelled and discharged in accordance with Section 11.01(g) its terms, Fannie Mae shall be satisfied that it is released from all liability regarding such Bonds and the applicable Credit Enhancement Instrument shall have been terminated on or in before the event date on which the Collateral Released Property is released from the lien of the failure applicable Mortgages;
(m) Receipt by Fannie Mae of any Borrower to comply with any Governmental Authority as a Compliance Certificate and Organizational Certificate; and
(n) The satisfaction of all conditions set forth in Section 11.01(m) which Potential Event of Default in Lender's reasonable judgment (x) is with respect to a particular Mortgaged Property and (y) is being corrected by action instituted by the respective Borrower and is being pursued diligently and in good faith, then the existence of such Potential Event of Default shall not be a condition to such Collateral Release Request provided that Borrowers satisfy all other conditions set forth in this Section 4.03 and pledge and deposit with Lender an amount equal to the gross proceeds of the sale of the Collateral Release Property net of all third-party non-affiliate transaction costs minus the Release Price. Such deposit shall be held by Servicer in a custodial account pursuant to the DUS Guide and shall be (i) released to the Borrowing Agent if and when the Potential Event of Default is cured or (ii) if an Event of Default occurs, applied in Lender's discretion. In addition, if a Potential Event of Default has occurred that in the reasonable judgment of Lender is with respect to a particular Mortgaged Property, then the existence of such Potential Event of Default shall not be a condition to a Collateral Release Request for the release of such Collateral Release Property provided that the Borrowers satisfy all other conditions set forth in this Section 4.033.1(2).
Appears in 1 contract
Samples: Master Reimbursement Agreement (Mid America Apartment Communities Inc)
Conditions Precedent to Release of Collateral Release Property from the Collateral. The obligation of the Lender to release a Collateral Release Property from the Collateral Pool by executing and delivering the Collateral Release Documents on the Release Closing Date is Date, are subject to the satisfaction of the following conditions precedent on or before the Release Closing Date:
(a) Receipt by Immediately after giving effect to the Lender requested release, the Coverage and LTV Tests will be satisfied. Notwithstanding the foregoing, if any of the Release Price tests set forth above in accordance this (a) or the Geographical Diversification Requirements or Concentration Test are not satisfied after the release of a Mortgaged Property, such release may be permitted by Lender if the release improves the Collateral Pool based on factors that are consistent with Section 4.02;Lender’s Underwriting Requirements and results in improvement in one or both of the following areas: the then current Aggregate Debt Service Coverage Ratio for the Trailing 12 Month Period or the then current Aggregate Loan to Value Ratio.
(b) Receipt by the Lender of the Release Price;
(c) Receipt by Lender of the Release Fee for the Collateral Release Property and all legal fees and expenses payable by the Borrowers Borrower in connection with the release pursuant to Section 10.03(b16.04(b);
(cd) Receipt by the Lender on the Release Closing Date of one (1) or more counterparts of each Collateral Release Document, dated as of the Release Closing Date, signed by each of the parties (other than the Lender) who is a party to such Collateral Release Document;
(de) If reasonably required by the Lender, amendments to the Note Notes and the Security Instruments, reflecting the release of the Collateral Release Property from the Collateral Pool and, as to any Security Instrument so amended, the receipt by the Lender of an endorsement to the Title Insurance Policy insuring the Security Instrument, amending the effective date of the Title Insurance Policy to the Release Closing Date and showing no additional exceptions to coverage other than the exceptions shown on the last Closing Date with respect to which the Title Insurance Policy was endorsed, Permitted Liens, and other exceptions approved by the Lender;
(ef) If the Lender reasonably determines the Collateral Release Property to be one phase of a project, and one or more other phases of the project are Mortgaged Properties which will remain in the Collateral Pool ("“Remaining Mortgaged Properties"”), the Lender's determination Lender must determine that the Remaining Mortgaged Properties can be operated separately from the Collateral Release Property and any other phases of the project which are not Mortgaged Properties. In making this determination, the Lender shall evaluate whether the Remaining Mortgaged Properties comply with the terms of Sections 203 and 208 of the DUS GuideLender’s Underwriting Requirements, which, as of the date of this Agreement, require, among other things, that a phase which constitutes collateral for a loan made in accordance with the terms of the DUS Guide Underwriting Requirements (i) have adequate ingress and egress to existing public roadways, either by location of the phase on a dedicated, all-weather road or by access to such a road by means of a satisfactory easement, (ii) have access which is sufficiently attractive and direct from major thoroughfares to be conducive to continued good marketing, (iii) have a location which is not (A) inferior to other phases, (B) such that inadequate maintenance of other phases would have a significant negative impact on the phase, and (C) such that the phase is visible only after passing through the other phases of the project and (iv) comply with such other issues as are dictated by prudent practice. Lender agrees that this paragraph (e) only applies to Harbour Club I and Harbour Club III;
(fg) Receipt by the Lender of endorsements to the Tie-In Endorsements of the Title Insurance Policies, if deemed reasonably necessary by the Lender, to reflect the release;
(gh) Receipt by the Lender on the Release Closing Date of a writing, dated as of the Release Closing Date, signed by the BorrowersBorrower, in the form attached as Exhibit N U to this Agreement, pursuant to which the Borrowers confirm Borrower confirms that their its obligations under the Loan Documents are not adversely affected by the release of the Collateral Release Property from the Collateral;
(hi) Payment by The remaining Mortgaged Properties in the Borrowers of Collateral Pool shall satisfy the Prepayment Premium, if any; andthen-existing Geographical Diversification Requirements;
(ij) The satisfaction of all of the following conditions:
(i) The payment by the Borrowers of the Lender's fees and expenses payable applicable General Conditions set forth in accordance with this Agreement for which Lender has presented an invoice on or before the Release Closing DateArticle 11;
(iik) There shall not be pending or threatened any condemnation or Notwithstanding the other takingprovisions of this Section 7.03, whether direct or indirect against any Mortgaged Property, and there shall not have occurred any casualty to any improvements located on any Mortgaged Property, which in the case no release of any such condemnation or taking or casualty would have or may reasonably be expected to have a Material Adverse Effect Portfolio Wide;
(iii) The receipt by the Lender of the followingMortgaged Properties shall be made unless Borrower has provided title insurance, taking into account Tie-In Endorsements, to Lender in respect of each dated as of the Release Closing Date, in form and substance satisfactory to the Lender in all respects:
A) A Compliance Certificate;
B) An Organizational Certificate; and
C) Such other documents, instruments, approvals (and, if requested by the Lender, certified duplicates of executed copies thereof) and opinions as the Lender may reasonably request.
(i) There shall exist no Event of Default or Potential Event of Default on the Release Closing Date and, after giving effect to the transaction requested remaining Mortgaged Properties in the Collateral Release Request, no Event of Default or Potential Event of Default shall have occurred provided that if a Potential Event of Default exists on the proposed Release Closing Date by virtue of a notice from Lender Pool in accordance with Section 11.01(g) or in the event of the failure of any Borrower to comply with any Governmental Authority as set forth in Section 11.01(m) which Potential Event of Default in Lender's reasonable judgment (x) is with respect to a particular Mortgaged Property and (y) is being corrected by action instituted by the respective Borrower and is being pursued diligently and in good faith, then the existence of such Potential Event of Default shall not be a condition to such Collateral Release Request provided that Borrowers satisfy all other conditions set forth in this Section 4.03 and pledge and deposit with Lender an amount equal to the gross proceeds one hundred twenty-five percent (125%) of the sale Initial Valuation of each of such remaining Mortgaged Properties;
(l) Notwithstanding the other provisions of this Section 7.03, at no time shall the Collateral Pool consist solely of the Collateral Release Mortgaged Property net of all third-party non-affiliate transaction costs minus the Release Price. Such deposit shall be held by Servicer in a custodial account pursuant to the DUS Guide and shall be (i) released to the Borrowing Agent if and when the Potential Event of Default is cured or (ii) if an Event of Default occurs, applied in Lender's discretion. In addition, if a Potential Event of Default has occurred that in the reasonable judgment of Lender is with respect to a particular Mortgaged Property, then the existence of such Potential Event of Default shall not be a condition to a Collateral Release Request for the release of such Collateral Release Property provided that the Borrowers satisfy all other conditions set forth in this Section 4.03.commonly known as Brier Creek Phase I.
Appears in 1 contract
Samples: Master Credit Facility Agreement (Mid America Apartment Communities Inc)
Conditions Precedent to Release of Collateral Release Property from the Collateral. The obligation of the Lender to release a Collateral Release Property from the Collateral Pool Pool, by executing and delivering the Collateral Release Documents on the Release Closing Date Date, is subject to the satisfaction of the following conditions precedent on or before the Release Closing Date:
(a) Receipt by Immediately prior to and immediately after giving effect to the Lender of requested release the Release Price in accordance with Section 4.02Coverage and LTV Tests will be satisfied;
(b) Receipt by the Lender of the Release Price which is required to be paid by the Borrower to the Lender to reduce Advances Outstanding pursuant to Sections 8.2(c) and 8.2(d), the Credit Facility Termination Fee, if any, which is required pursuant to Section 8.2(e) and all legal fees and expenses payable by the Borrowers Borrower in connection with the release pursuant to Section 10.03(b18.4(b);
(c) Receipt by the Lender on the Release Closing Date of one or more counterparts of each Collateral Release Document, dated as of the Release Closing Date, signed by each of the parties (other than the Lender) who is a party to such Collateral Release Document;
(d) If reasonably required by the Lender, amendments to the Note Notes and the Security Instruments, reflecting the release of the Collateral Release Property from the Collateral Pool and, as to any Security Instrument so amended, the receipt by the Lender of an endorsement to the Title Insurance Policy insuring the Security Instrument, amending the effective date of the -xlvi- Title Insurance Policy to the Release Closing Date and showing no additional exceptions to coverage other than the exceptions shown on the Closing Date and other exceptions approved by the LenderPermitted Liens;
(e) If the Lender reasonably determines the Collateral Release Property to be one phase of a project, and one or more other phases of the project are Mortgaged Properties which will remain in the Collateral Pool ("Remaining Mortgaged Properties"), the Lender's determination that the Remaining Mortgaged Properties can be operated separately from the Collateral Release Property and any other phases of the project which are not Mortgaged Properties. In making this determination, the Lender shall evaluate whether the Remaining Mortgaged Properties comply with the terms of Sections 203 and 208 of the DUS Guide, which, as of the date of this Agreement, require, among other things, that a phase which constitutes collateral for a loan made in accordance with the terms of the DUS Guide (i) have adequate ingress and egress to existing public roadways, either by location of the phase on a dedicated, all-weather road or by access to such a road by means of a satisfactory easement, (ii) have access which is sufficiently attractive and direct from major thoroughfares to be conducive to continued good marketing, (iii) have a location which is not (A) inferior to other phases, (B) such that inadequate maintenance of other phases would have a significant negative impact on the phase, and (C) such that the phase is visible only after passing through the other phases of the project and (iv) comply with such other issues as are dictated by prudent practice. Lender agrees that this paragraph (e) only applies to Harbour Club I and Harbour Club III;
(f) Receipt by the Lender of endorsements to the Tie-In Endorsements of the Title Insurance Policies, if deemed reasonably necessary by the Lender, to reflect the release;
(g) Receipt by the Lender on the Release Closing Date of a writing, dated as of the Release Closing Date, signed by the BorrowersBorrower Parties, in the form attached as Exhibit N Z to this Agreement, pursuant to which the Borrowers Borrower Parties confirm that their obligations under the Loan Documents are not adversely affected by the release of the Collateral Release Property from the Collateral;
(h) Payment The remaining Mortgaged Properties in the Collateral Pool shall satisfy the Geographical Diversification Requirements;
(i) Receipt by the Borrowers Lender of a Revolving Facility Termination Request in the amount of the Prepayment Premium, if anyapplicable Release Price; and
(ij) The satisfaction of all of the following conditions:
(i) The payment by the Borrowers of the Lender's fees and expenses payable in accordance with this Agreement for which Lender has presented an invoice on or before the Release Closing Date;
(ii) There shall not be pending or threatened any condemnation or other taking, whether direct or indirect against any Mortgaged Property, and there shall not have occurred any casualty to any improvements located on any Mortgaged Property, which in the case of any such condemnation or taking or casualty would have or may reasonably be expected to have a Material Adverse Effect Portfolio Wide;
(iii) The receipt by the Lender of the following, each dated as of the Release Closing Date, in form and substance satisfactory to the Lender in all respects:
A) A Compliance Certificate;
B) An Organizational Certificate; and
C) Such other documents, instruments, approvals (and, if requested by the Lender, certified duplicates of executed copies thereof) and opinions as the Lender may reasonably request.
(i) There shall exist no Event of Default or Potential Event of Default on the Release Closing Date and, after giving effect to the transaction requested in the Collateral Release Request, no Event of Default or Potential Event of Default shall have occurred provided that if a Potential Event of Default exists on the proposed Release Closing Date by virtue of a notice from Lender in accordance with Section 11.01(g) or in the event of the failure of any Borrower to comply with any Governmental Authority as General Conditions set forth in Section 11.01(mSections 12.1(a) which Potential Event of Default in Lender's reasonable judgment (xand 12.1(c) is with respect to a particular Mortgaged Property and (y) is being corrected by action instituted by the respective Borrower and is being pursued diligently and in good faiththrough 12.1(f), then the existence of such Potential Event of Default shall not be a condition to such Collateral Release Request provided that Borrowers satisfy all other conditions set forth in this Section 4.03 and pledge and deposit with Lender an amount equal to the gross proceeds of the sale of the Collateral Release Property net of all third-party non-affiliate transaction costs minus the Release Price. Such deposit shall be held by Servicer in a custodial account pursuant to the DUS Guide and shall be (i) released to the Borrowing Agent if and when the Potential Event of Default is cured or (ii) if an Event of Default occurs, applied in Lender's discretion. In addition, if a Potential Event of Default has occurred that in the reasonable judgment of Lender is with respect to a particular Mortgaged Property, then the existence of such Potential Event of Default shall not be a condition to a Collateral Release Request for the release of such Collateral Release Property provided that the Borrowers satisfy all other conditions set forth in this Section 4.03inclusive.
Appears in 1 contract
Samples: Master Credit Facility Agreement (Archstone Communities Trust/)
Conditions Precedent to Release of Collateral Release Property from the Collateral. The obligation of the Lender to release a Collateral Release Property from the Collateral Pool by executing and delivering the Collateral Release Documents on the Release Closing Date is Date, are subject to the satisfaction of the following conditions precedent on or before the Release Closing Date:
(a) Receipt by Immediately after giving effect to the Lender requested release the Coverage and LTV Tests will be satisfied, and in the case of any substitution effected pursuant to Section 7.04 of this Agreement, the Release Price in accordance with Section 4.02Coverage and LTV Tests are not adversely affected after giving effect to the proposed substitution;
(b) Receipt by the Lender of all legal fees and expenses payable by the Borrowers in connection with the release pursuant to Section 10.03(b)Release Price;
(c) Receipt by the Lender of the Release Fee for the Collateral Release Property and all legal fees and expenses payable by the Borrower in connection with the release pursuant to Section 16.04(b);
(d) Receipt by the Lender on the Release Closing Date of one or more counterparts of each Collateral Release Document, dated as of the Release Closing Date, signed by each of the parties (other than the Lender) who is a party to such Collateral Release Document;
(de) If reasonably required by the Lender, amendments to the Note Notes and the Security Instruments, reflecting the release of the Collateral Release Property from the Collateral Pool and, as to any Security Instrument so amended, the receipt by the Lender of an endorsement to the Title Insurance Policy insuring the Security Instrument, amending the effective date of the Title Insurance Policy to the Release Closing Date and showing no additional exceptions to coverage other than the exceptions shown on the Initial Closing Date Date, Permitted Liens, and other exceptions approved by the Lender;
(ef) If the Lender reasonably determines the Collateral Release Property to be one phase of a project, and one or more other phases of the project are Mortgaged Properties which will remain in the Collateral Pool ("“Remaining Mortgaged Properties"”), the Lender's determination Lender must determine that the Remaining Mortgaged Properties can be operated separately from the Collateral Release Property and any other phases of the project which are not Mortgaged Properties. In making this determination, the Lender shall evaluate whether the Remaining Mortgaged Properties comply with the terms of Sections 203 and 208 of the DUS Guide, which, as of the date of this Agreement, require, among other things, that a phase which constitutes collateral for a loan made in accordance with the terms of the DUS Guide (i) have adequate ingress and egress to existing public roadways, either by location of the phase on a dedicated, all-weather road or by access to such a road by means of a satisfactory easement, (ii) have access which is sufficiently attractive and direct from major thoroughfares to be conducive to continued good marketing, (iii) have a location which is not (A) inferior to other phases, (B) such that inadequate maintenance of other phases would have a significant negative impact on the phase, and (C) such that the phase is visible only after passing through the other phases of the project and (iv) comply with such other issues as are dictated by prudent practice. Lender agrees that this paragraph (e) only applies to Harbour Club I and Harbour Club III;
(fg) Receipt by the Lender of endorsements to the Tie-In Endorsements of the Title Insurance Policies, if deemed reasonably necessary by the Lender, to reflect the release;
(gh) Receipt by the Lender on the Release Closing Date of a writing, dated as of the Release Closing Date, signed by the BorrowersBorrower, in the form attached as Exhibit N U to this Agreement, pursuant to which the Borrowers confirm Borrower confirms that their its obligations under the Loan Documents are not adversely affected by the release of the Collateral Release Property from the Collateral;
(hi) Payment by The remaining Mortgaged Properties in the Borrowers of Collateral Pool shall satisfy the Prepayment Premium, if any; andthen-existing Geographical Diversification Requirements;
(ij) The satisfaction of all of the following conditions:
(i) The payment by the Borrowers of the Lender's fees and expenses payable applicable General Conditions set forth in accordance with this Agreement for which Lender has presented an invoice on or before the Release Closing Date;
(ii) There shall not be pending or threatened any condemnation or other taking, whether direct or indirect against any Mortgaged Property, and there shall not have occurred any casualty to any improvements located on any Mortgaged Property, which in the case of any such condemnation or taking or casualty would have or may reasonably be expected to have a Material Adverse Effect Portfolio Wide;
(iii) The receipt by the Lender of the following, each dated as of the Release Closing Date, in form and substance satisfactory to the Lender in all respects:
A) A Compliance Certificate;
B) An Organizational CertificateArticle XI; and
C(k) Such Notwithstanding the other documentsprovisions of this Section 7.03, instrumentsno release of any of the Mortgaged Properties shall be made unless the Borrower has provided title insurance, approvals (andtaking into account Tie-In Endorsements, if requested by to Lender in respect of each of the Lender, certified duplicates of executed copies thereof) and opinions as the Lender may reasonably request.
(i) There shall exist no Event of Default or Potential Event of Default on the Release Closing Date and, after giving effect to the transaction requested remaining Mortgaged Properties in the Collateral Release Request, no Event of Default or Potential Event of Default shall have occurred provided that if a Potential Event of Default exists on the proposed Release Closing Date by virtue of a notice from Lender Pool in accordance with Section 11.01(g) or in the event of the failure of any Borrower to comply with any Governmental Authority as set forth in Section 11.01(m) which Potential Event of Default in Lender's reasonable judgment (x) is with respect to a particular Mortgaged Property and (y) is being corrected by action instituted by the respective Borrower and is being pursued diligently and in good faith, then the existence of such Potential Event of Default shall not be a condition to such Collateral Release Request provided that Borrowers satisfy all other conditions set forth in this Section 4.03 and pledge and deposit with Lender an amount equal to the gross proceeds 125% of the sale Initial Valuation of the Collateral Release Property net of all third-party non-affiliate transaction costs minus the Release Price. Such deposit shall be held by Servicer in a custodial account pursuant to the DUS Guide and shall be (i) released to the Borrowing Agent if and when the Potential Event of Default is cured or (ii) if an Event of Default occurs, applied in Lender's discretion. In addition, if a Potential Event of Default has occurred that in the reasonable judgment of Lender is with respect to a particular Mortgaged Property, then the existence each of such Potential Event of Default shall not be a condition to a Collateral Release Request for the release of such Collateral Release Property provided that the Borrowers satisfy all other conditions set forth in this Section 4.03remaining Mortgaged Properties.
Appears in 1 contract
Samples: Master Credit Facility Agreement (Mid America Apartment Communities Inc)
Conditions Precedent to Release of Collateral Release Property from the Collateral. The right of the Borrower to obtain a release of a Collateral Release Property from the Collateral Pool and the obligation of the Lender to release a Collateral Release Property from the Collateral Pool by executing and delivering the Collateral Release Documents on the Release Closing Date is Date, are subject to the satisfaction of the following conditions precedent on or before the Release Closing Date:
(a) Receipt by Immediately after giving effect to the Lender requested release:
(i) the Aggregate Debt Service Coverage Ratio for the Trailing 12 Month Period is not less than the Minimum Aggregate Debt Service Coverage Ratio for the Trailing 12 Month Period;
(ii) the Aggregate Debt Service Coverage Ratio for the Trailing Three Month Period is not less than the Minimum Aggregate Debt Service Coverage Ratio for the Trailing Three Month Period; and
(iii) the Aggregate Loan to Value Ratio for the Trailing 12 Month Period is not greater than the Maximum Aggregate Loan to Value Ratio for the Trailing 12 Month Period.
(b) Payment of the Release Price in accordance with Section 4.02;
(b) Receipt by for the Lender of all legal fees and expenses payable by the Borrowers in connection with the release pursuant to Section 10.03(b)Collateral Release Property;
(c) Payment of the Release Fee for the Collateral Release Property;
(d) Receipt by the Lender on the Release Closing Date of one or more counterparts of each Collateral Release Document, dated as of the Release Closing Date, signed by each of the parties (other than the Lender) who is a party to such Collateral Release Document;
(de) If reasonably required by the Lender, amendments to the Note Notes and the Security InstrumentsDocuments, reflecting the release of the Collateral Release Property from the Collateral Pool and, as to any Security Instrument so amended, the receipt by the Lender of an endorsement to the Title Insurance Policy insuring the Security InstrumentInstrument (other than a Title Insurance Policy for Mortgaged Properties located in Texas or Florida, unless the same can be obtained at nominal cost), either (i) amending the effective date of the Title Insurance Policy to the Release Closing Date and showing no additional exceptions to coverage other than the exceptions shown on the Initial Closing Date and other exceptions approved by the LenderLender or (ii) insuring the Lender that the amendment to the Security Instrument has not invalidated the Title Insurance Policy;
(ef) If the Lender reasonably determines the Collateral Release Property to be one phase of a project, and one or more other phases of the project are Mortgaged Properties which will remain in the Collateral Pool (the "Remaining Mortgaged PropertiesREMAINING MORTGAGED PROPERTIES"), the Lender's determination that the Remaining Mortgaged Properties can be operated separately from the Collateral Release Property and any other phases of the project which are not Mortgaged Properties. In making this determination, the Lender shall evaluate whether the Remaining Mortgaged Properties comply with the terms of Sections 203 and 208 of the DUS Guide, which, as of the date of this Agreement, require, among other things, that a phase which constitutes collateral for a loan made in accordance with the terms of the DUS Guide (i) have adequate ingress and egress to existing public roadways, either by location of the phase on a dedicated, all-weather road or by access to such a road by means of a satisfactory easement, (ii) have access which is sufficiently attractive and direct from major thoroughfares to be conducive to continued good marketing, (iii) have a location which is not (A) inferior to other phases, (B) such that inadequate maintenance of other phases would have a significant negative impact on the phase, and (C) such that the phase is visible only after passing through the other phases of the project and (iv) comply with such other issues as are dictated by prudent practice. Lender agrees that this paragraph (e) only applies to Harbour Club I and Harbour Club III;
(fg) Receipt by the Lender of endorsements to the Tie-In Endorsements of the Title Insurance Policies, if deemed reasonably necessary by the Lender, to reflect the release;
(gh) Receipt by the Lender on the Release Closing Date of a writing, dated as of the Release Closing Date, signed by the BorrowersAIMCO Parties, in the form attached as Exhibit N EXHIBIT CC to this Agreement, pursuant to which the Borrowers AIMCO Parties confirm that their obligations under the Loan Documents are not adversely affected by the release of the Collateral Release Property from the Collateral;
(hi) Payment by The remaining Mortgaged Properties in the Borrowers Collateral Pool shall satisfy the then-existing Geographical Diversification Requirements;
(j) Immediately after giving effect to the requested release, the aggregate Valuations of the Prepayment Premium, if anyLakehaven Notes shall not exceed 25% of the aggregate Valuations of all Mortgaged Properties and the Lakehaven Notes; and
(ik) The satisfaction of all of the following conditions:
(i) The payment by the Borrowers of the Lender's fees and expenses payable in accordance with this Agreement for which Lender has presented an invoice on or before the Release Closing Date;
(ii) There shall not be pending or threatened any condemnation or other taking, whether direct or indirect against any Mortgaged Property, and there shall not have occurred any casualty to any improvements located on any Mortgaged Property, which in the case of any such condemnation or taking or casualty would have or may reasonably be expected to have a Material Adverse Effect Portfolio Wide;
(iii) The receipt by the Lender of the following, each dated as of the Release Closing Date, in form and substance satisfactory to the Lender in all respects:
A) A Compliance Certificate;
B) An Organizational Certificate; and
C) Such other documents, instruments, approvals (and, if requested by the Lender, certified duplicates of executed copies thereof) and opinions as the Lender may reasonably request.
(i) There shall exist no Event of Default or Potential Event of Default on the Release Closing Date and, after giving effect to the transaction requested in the Collateral Release Request, no Event of Default or Potential Event of Default shall have occurred provided that if a Potential Event of Default exists on the proposed Release Closing Date by virtue of a notice from Lender in accordance with Section 11.01(g) or in the event of the failure of any Borrower to comply with any Governmental Authority as General Conditions set forth in Section 11.01(m) which Potential Event of Default in Lender's reasonable judgment (x) is with respect to a particular Mortgaged Property and (y) is being corrected by action instituted by the respective Borrower and is being pursued diligently and in good faith, then the existence of such Potential Event of Default shall not be a condition to such Collateral Release Request provided that Borrowers satisfy all other conditions set forth in this Section 4.03 and pledge and deposit with Lender an amount equal to the gross proceeds of the sale of the Collateral Release Property net of all third-party non-affiliate transaction costs minus the Release Price. Such deposit shall be held by Servicer in a custodial account pursuant to the DUS Guide and shall be (i) released to the Borrowing Agent if and when the Potential Event of Default is cured or (ii) if an Event of Default occurs, applied in Lender's discretion. In addition, if a Potential Event of Default has occurred that in the reasonable judgment of Lender is with respect to a particular Mortgaged Property, then the existence of such Potential Event of Default shall not be a condition to a Collateral Release Request for the release of such Collateral Release Property provided that the Borrowers satisfy all other conditions set forth in this Section 4.03Article XI.
Appears in 1 contract
Samples: Master Credit Facility Agreement (Apartment Investment & Management Co)
Conditions Precedent to Release of Collateral Release Property from the Collateral. The obligation of the Lender to release a Collateral Release Property from the Collateral Pool by executing and delivering the Collateral Release Documents on the Release Closing Date is Date, are subject to the satisfaction of the following conditions precedent on or before the Release Closing Date:
(a) Receipt by Immediately after giving effect to the Lender requested release the Coverage and LTV Tests will be satisfied, and in the case of any substitution effected pursuant to Section 7.04 of this Agreement, the Release Price in accordance with Section 4.02Coverage and LTV Tests are not adversely affected after giving effect to the proposed substitution;
(b) Receipt by the Lender of all legal fees and expenses payable by the Borrowers in connection with the release pursuant to Section 10.03(b)Release Price;
(c) Receipt by the Lender of the Release Fee for the Collateral Release Property and all legal fees and expenses payable by the Borrower in connection with the release pursuant to Section 16.04(b);
(d) Receipt by the Lender on the Release Closing Date of one or more counterparts of each Collateral Release Document, dated as of the Release Closing Date, signed by each of the parties (other than the Lender) who is a party to such Collateral Release Document;
(de) If reasonably required by the Lender, amendments to the Note Notes and the Security Instruments, reflecting the release of the Collateral Release Property from the Collateral Pool and, as to any Security Instrument so amended, the receipt by the Lender of an endorsement to the Title Insurance Policy insuring the Security Instrument, amending the effective date of the Title Insurance Policy to the Release Closing Date and showing no additional exceptions to coverage other than the exceptions shown on the Initial Closing Date and other exceptions approved by the Lender;
(ef) If the Lender reasonably determines the Collateral Release Property to be one phase of a project, and one or more other phases of the project are Mortgaged Properties which will remain in the Collateral Pool ("Remaining Mortgaged PropertiesREMAINING MORTGAGED PROPERTIES"), the Lender's determination Lender must determine that the Remaining Mortgaged Properties can be operated separately from the Collateral Release Property and any other phases of the project which are not Mortgaged Properties. In making this determination, the Lender shall evaluate whether the Remaining Mortgaged Properties comply with the terms of Sections 203 and 208 of the DUS Guide, which, as of the date of this Agreement, require, among other things, that a phase which constitutes collateral for a loan made in accordance with the terms of the DUS Guide (i) have adequate ingress and egress to existing public roadways, either by location of the phase on a dedicated, all-weather road or by access to such a road by means of a satisfactory easement, (ii) have access which is sufficiently attractive and direct from major thoroughfares to be conducive to continued good marketing, (iii) have a location which is not (A) inferior to other phases, (B) such that inadequate maintenance of other phases would have a significant negative impact on the phase, and (C) such that the phase is visible only after passing through the other phases of the project and (iv) comply with such other issues as are dictated by prudent practice. Lender agrees that this paragraph (e) only applies to Harbour Club I and Harbour Club III;
(fg) Receipt by the Lender of endorsements to the Tie-In Endorsements of the Title Insurance Policies, if deemed reasonably necessary by the Lender, to reflect the release;
(gh) Receipt by the Lender on the Release Closing Date of a writing, dated as of the Release Closing Date, signed by the BorrowersBorrower Parties, in the form attached as Exhibit N EXHIBIT U to this Agreement, pursuant to which the Borrowers Borrower Parties confirm that their obligations under the Loan Documents are not adversely affected by the release of the Collateral Release Property from the Collateral;
(hi) Payment by The remaining Mortgaged Properties in the Borrowers of Collateral Pool shall satisfy the Prepayment Premium, if anythen-existing Geographical Diversification Requirements; and
(ij) The satisfaction of all of the following conditions:
(i) The payment by the Borrowers of the Lender's fees and expenses payable in accordance with this Agreement for which Lender has presented an invoice on or before the Release Closing Date;
(ii) There shall not be pending or threatened any condemnation or other taking, whether direct or indirect against any Mortgaged Property, and there shall not have occurred any casualty to any improvements located on any Mortgaged Property, which in the case of any such condemnation or taking or casualty would have or may reasonably be expected to have a Material Adverse Effect Portfolio Wide;
(iii) The receipt by the Lender of the following, each dated as of the Release Closing Date, in form and substance satisfactory to the Lender in all respects:
A) A Compliance Certificate;
B) An Organizational Certificate; and
C) Such other documents, instruments, approvals (and, if requested by the Lender, certified duplicates of executed copies thereof) and opinions as the Lender may reasonably request.
(i) There shall exist no Event of Default or Potential Event of Default on the Release Closing Date and, after giving effect to the transaction requested in the Collateral Release Request, no Event of Default or Potential Event of Default shall have occurred provided that if a Potential Event of Default exists on the proposed Release Closing Date by virtue of a notice from Lender in accordance with Section 11.01(g) or in the event of the failure of any Borrower to comply with any Governmental Authority as applicable General Conditions set forth in Section 11.01(m) which Potential Event of Default in Lender's reasonable judgment (x) is with respect to a particular Mortgaged Property and (y) is being corrected by action instituted by the respective Borrower and is being pursued diligently and in good faith, then the existence of such Potential Event of Default shall not be a condition to such Collateral Release Request provided that Borrowers satisfy all other conditions set forth in this Section 4.03 and pledge and deposit with Lender an amount equal to the gross proceeds of the sale of the Collateral Release Property net of all third-party non-affiliate transaction costs minus the Release Price. Such deposit shall be held by Servicer in a custodial account pursuant to the DUS Guide and shall be (i) released to the Borrowing Agent if and when the Potential Event of Default is cured or (ii) if an Event of Default occurs, applied in Lender's discretion. In addition, if a Potential Event of Default has occurred that in the reasonable judgment of Lender is with respect to a particular Mortgaged Property, then the existence of such Potential Event of Default shall not be a condition to a Collateral Release Request for the release of such Collateral Release Property provided that the Borrowers satisfy all other conditions set forth in this Section 4.03Article XI.
Appears in 1 contract
Samples: Master Credit Facility Agreement (Mid America Apartment Communities Inc)
