Common use of Defeasance and Release Clause in Contracts

Defeasance and Release. (a) On any Payment Date after the expiration of the Defeasance Lockout Period and prior to the Prepayment Lockout Release Date, provided that no Event of Default has occurred and is continuing and all of the conditions set forth in Section 9.1(b) are complied with, Borrower shall have the right to obtain a release of the Liens of the Security Instrument and the Assignment of Leases on either an Individual Property that has not been subject to a prior Property Release or all of the Individual Properties that have not been subject to prior Property Releases pursuant to and in accordance with the requirements of Section 8.7, upon at least thirty (30) days prior written notice (or such shorter period of time as Lender permits in its sole discretion) and upon satisfaction of the following (such a release, after satisfaction of the other provisions of this Section 9.1(a), a Defeasance): (i) if only a portion of the Loan is the subject of the Defeasance, Borrower shall prepare all necessary documents to modify this Agreement, and to amend and restate the Notes and issue, with respect to each Individual Property that is the subject of a Defeasance, a substitute note in form and substance reasonably acceptable to Lender, dated as of the date of the Defeasance (which must be on a Payment Date), payable to Lender, having a principal balance equal to the Defeasance Collateral Requirement Percentage of the Allocated Loan Amount of the Individual Property which is the Release Property in connection with such Defeasance (each a Defeasance Note) and a series of other notes having an aggregate principal balance equal to the undefeased portion of the Loan (each an Undefeased Note). For purposes of determining the principal balance of each individual Undefeased Note, the principal amount of each Defeasance Note shall be applied on a pro rata basis to reduce the principal amount of each Undefeased Note. Each Defeased Note and Undefeased Note shall otherwise have terms identical to the Notes, except that a Defeased Note cannot be the subject of any further Defeasance Event. (ii) Borrower shall execute and deliver a pledge and security agreement (the Defeasance Security Agreement), in form and substance reasonably acceptable to Lender, dated as of the date of the Defeasance (which must be on a Payment Date), in favor of the Lender, pursuant to which the Lender is granted a perfected first priority security interest in the Defeasance Collateral. (iii) In connection with any Defeasance, Borrower may at its option, or if so required by the Lender or, if the Loan is the subject of a Securitization, applicable Rating Agencies shall, establish or designate a successor entity (Successor Borrower) acceptable to Lender and, if the Loan is the subject of a Securitization, the Rating Agencies, which shall be a single purpose bankruptcy remote entity, and Borrower shall transfer and assign all obligations, rights and duties under and to the Defeased Note(s), together with the Defeasance Collateral to such Successor Borrower. Such Successor Borrower shall assume the obligations under the Defeased Note(s) and the Security Agreement and Borrower shall be relieved of its obligations under such documents. Borrower shall pay One Thousand and 00/100 Dollars ($1,000) to any such Successor Borrower as consideration for assuming the obligations under the Defeased Note(s) and the Security Agreement. (iv) if a Securitization has occurred, Borrower shall deliver a Rating Agency Confirmation. (v) Borrower shall deliver an Officer’s Certificate certifying that the requirements set forth in this Section 9.1 have been satisfied and that the information delivered to Lender for purposes of making the calculations referred to in Section 9.1(a)(vii) below is true and correct. (vi) Borrower shall have paid to Lender all accrued and unpaid interest on the Principal Amount of the Loan, together with all other sums (not including scheduled interest or principal payments) then due under this Agreement, the Security Instruments and the other Loan Documents. (vii) The Lender shall have determined that the Loan to Value Test is satisfied and the Release DSCR Test is satisfied. (viii) Borrower shall pay all costs and expenses of Lender incurred in connection with the Defeasance, including (A) any costs and expenses associated with a release of the Lien of the Security Instrument as provided in Section 2.3.3 hereof, (B) reasonable accountants and attorneys’ fees and expenses incurred in connection with the Defeasance, (C) the costs and expenses of the Rating Agencies, if the Loan is the subject of a Securitization, (D) any revenue, documentary stamp or intangible taxes or any other tax or charge due in connection with the transfer of the Note, or otherwise required to accomplish the Defeasance (including any costs and expenses incurred or to be incurred in the purchase of the Defeasance Collateral) and (E) the costs and expenses of Servicer and any trustee, including reasonable attorneys’ fees. (b) With respect to a Defeasance pursuant to Section 9.1(a), the Borrower shall deposit the Defeasance Collateral in accordance with Section 9.1(b)(ii) to the Defeasance Collateral Account. Defeasance shall be permitted at such time as all of the following events shall have occurred: (i) the Defeasance Collateral Account shall have been established pursuant to Section 9.1(e); (ii) Borrower shall have delivered or caused to have been delivered to Lender the Defeasance Collateral for deposit into the Defeasance Collateral Account such that it will satisfy the Defeasance Collateral Requirement at the time of delivery and all such Defeasance Collateral, if in registered form, shall be registered in the name of Lender or its nominee (and, if registered in nominee name endorsed to Lender or in blank) and, if issued in book-entry form, the name of Lender or its nominee shall appear as the owner of such securities on the books of the Federal Reserve Bank or other party maintaining such book-entry system; (iii) Borrower shall have granted or caused to have been granted to Lender a valid perfected first priority security interest in the Defeasance Collateral and all proceeds thereof; (iv) Borrower shall have delivered or caused to be delivered to Lender an Officers’ Certificate, dated as of the date of such delivery (x) that sets forth the aggregate face amount or unpaid principal amount, interest rate and maturity of all such Defeasance Collateral, a copy of the transaction journal, if any, or such other notification, if any, published by or on behalf of the Federal Reserve Bank or other party maintaining a book-entry system advising that Lender or its nominee is the owner of such securities issued in book-entry form, and (y) that states that: (1) Borrower owns the Defeasance Collateral being delivered to Lender free and clear of any and all Liens, security interests or other encumbrances (other than the Defeasance Security Agreement), and has not assigned any interest or participation therein (or, if any such interest or participation has been assigned, it has been released), and Borrower has full power and authority to pledge such Defeasance Collateral to Lender; (2) such Defeasance Collateral consists solely of Defeasance Eligible Investments; (3) such Defeasance Collateral satisfies the Defeasance Collateral Requirement, determined as of the date of delivery; and (4) the information set forth in the schedule attached to such Officer’s Certificate is correct and complete in all material respects as of the date of delivery (such schedule, which shall be attached to and form a part of such Officer’s Certificate, shall demonstrate satisfaction of the requirement set forth in clause (2) above, in a form reasonably acceptable to Lender); (v) Borrower shall have delivered a certificate of Borrower’s independent certified public accountant certifying that the Defeasance Collateral purchased in connection with the Defeasance generates monthly amounts equal to or greater than the Defeasance Collateral Requirement and that such amounts are generated in each month prior to the related Payment Date (or in the case of the payment due on the Maturity Date, prior to the Maturity Date) in each such month; (vi) Borrower shall have delivered or caused to be delivered to Lender a Rating Agency Confirmation, if a Securitization has occurred, and such other documents and certificates as Lender or the Rating Agencies, may reasonably request, including a Non-Disqualification Opinion and Opinions of Counsel demonstrating that Borrower has satisfied the provisions of this Section 9.1(b) (including, but not limited to, an Opinion of Counsel stating, among other things, that Lender has a perfected first priority security interest in the Defeasance Collateral and that the Defeasance Security Agreement is enforceable in accordance with its terms). (c) For purposes of determining whether sufficient amounts of Defeasance Collateral are on deposit in the Defeasance Collateral Account, there shall be included only payments of principal and predetermined and certain income thereon (as reasonably determined by Lender and agreed to by Borrower without regard to any reinvestment of such amounts) that will occur on a stated date for a stated payment on or before the dates when such amounts may be required to be applied to pay the principal and interest when due on the Defeasance Notes (and/or any substitute notes, as applicable), including, without limitation, the outstanding principal balance of the Defeasance Notes (and/or any substitute notes, as applicable) as of the Maturity Date. (d) Upon or after the delivery of Defeasance Collateral in accordance with Section 9.1(b) and the satisfaction of all other conditions provided for in this Section 9.1, Lender shall enter into appropriate release documentation. (e) On or before the date on which Borrower delivers Defeasance Collateral to Lender pursuant to Section 9.1(b), Borrower shall open at any Eligible Institution (or other bank subject to the next sentence hereof) at the time and acting as custodian for Lender, a defeasance collateral account (the Defeasance Collateral Account) which shall at all times be an Eligible Account, in which Borrower shall grant to Lender or reconfirm the grant to Lender of a security interest. The Defeasance Collateral Account shall contain (i) all Defeasance Collateral delivered by Borrower pursuant to Section 9.1(b), (ii) all payments received on Defeasance Collateral held in the Defeasance Collateral Account and (iii) all income or other gains from investment of moneys or other property deposited in the Defeasance Collateral Account. All such amounts, including all income from the investment or reinvestment thereof, shall be held by Lender, subject to withdrawal by Lender for the purposes set forth in this Section 9.1. Borrower shall be the owner of the Defeasance Collateral Account and shall report all income accrued on Defeasance Collateral for federal, state and local income tax purposes in its income tax return. (f) Lender shall withdraw, draw on or collect and apply the amounts that are on deposit in the Defeasance Collateral Account to pay when due the principal and all installments of interest and principal on the Defeasance Notes. Funds and other property in the Defeasance Collateral Account shall not be commingled with any other monies or property of Borrower or any Affiliate of Borrower. Lender shall not in any way be held liable by reason of any insufficiency in the Defeasance Collateral Account. (g) Borrower and Lender shall enter into any appropriate amendments to the Loan Documents necessitated by a Defeasance of the Loan, such amendments to be in form and substance reasonably acceptable to both Borrower and Lender.

Defeasance and Release. (a) On At any Payment Date time after the expiration of the Defeasance Lockout Period and prior to the Prepayment Lockout Release Date, provided that no Event of Default has occurred and is continuing and all of the conditions set forth in Section 9.1(b) are complied with, Lender hereby agrees that Borrower shall have the right to obtain a release of the Liens of the Security Instrument and the Assignment of Leases on either an Individual (i) a Release Property that has not been is subject to a prior Property Release or all of the Individual Properties that have not been subject to prior Property Releases pursuant to and in accordance with the requirements of Section 8.78.7 or (ii) the Property that has not been subject to prior Property Releases, in either case upon at least thirty (30) days prior written notice (or such shorter period of time as Lender permits in its sole discretion) and upon satisfaction of the following (such a release, after satisfaction of the other provisions of this Section 9.1(a), a Defeasance): (i) if only a portion of the Loan is the subject of the Defeasance, Borrower shall prepare all necessary documents to modify this Agreement, execution and to amend and restate the Notes and issue, with respect to each Individual Property that is the subject delivery of a Defeasancedefeasance note (the Defeasance Note), a substitute note in form and substance reasonably acceptable to Lender, dated as of the date of the Defeasance (which must be on a Payment Date), payable to Lender, having a principal balance in an amount equal to the Defeasance Collateral Requirement Percentage of the Allocated Loan Amount of the Individual Property which is the Release Property in connection with such Defeasance (each a Defeasance Note) and a series of other notes having an aggregate principal balance equal to the undefeased portion of the Loan (each an Undefeased Note). For purposes of determining the principal balance of each individual Undefeased Note, the principal amount of each Defeasance Note shall be applied on a pro rata basis to reduce the principal amount of each Undefeased Note. Each Defeased Note and Undefeased Note shall otherwise have terms identical to the Notes, except that a Defeased Note cannot be the subject of any further Defeasance Event.Requirement; (ii) Borrower shall execute the execution and deliver delivery of a pledge and security agreement (the Defeasance Security Agreement), in form and substance reasonably acceptable to Lender, dated as of the date of the Defeasance (which must be on a Payment Date), in favor of the Lender, pursuant to which the Lender is granted a perfected first priority security interest in the Defeasance Collateral.; (iii) In connection with any Defeasancethe execution and delivery of appropriate and reasonable agreements and/or instruments, Borrower may at its option, or if so required by the Lender or, if the Loan is the subject of a Securitization, applicable Rating Agencies shall, establish or designate a successor entity (Successor Borrower) each in form and substance reasonably acceptable to Lender andLender, if pursuant to which the Loan is the subject obligations and liabilities of a Securitization, the Rating Agencies, which shall be a single purpose bankruptcy remote entity, and Borrower shall transfer and assign all obligations, rights and duties under and to the Defeased Note(s), together with the Defeasance Collateral to such Successor Borrower. Such Successor Borrower shall assume the obligations under the Defeased Note(s) Note and the Defeasance Security Agreement and Borrower shall be relieved are assumed by a new entity which satisfies all of its obligations under such documents. Borrower shall pay One Thousand and 00/100 Dollars ($1,000) to any such Successor Borrower as consideration for assuming the obligations under the Defeased Note(s) and the Security Agreement.Single Purpose Entity requirements; (iv) if a Securitization has occurred, Borrower shall deliver delivery of a Rating Agency Confirmation.; and (v) Borrower shall deliver an Officer’s Certificate certifying that the requirements set forth in this Section 9.1 have been satisfied no Event of Default has occurred and that the information delivered to Lender for purposes of making the calculations referred to in Section 9.1(a)(vii) below is true and correct. (vi) Borrower shall have paid to Lender all accrued and unpaid interest on the Principal Amount of the Loan, together with all other sums (not including scheduled interest or principal payments) then due under this Agreement, the Security Instruments and the other Loan Documents. (vii) The Lender shall have determined that the Loan to Value Test is satisfied and the Release DSCR Test is satisfied. (viii) Borrower shall pay all costs and expenses of Lender incurred in connection with the Defeasance, including (A) any costs and expenses associated with a release of the Lien of the Security Instrument as provided in Section 2.3.3 hereof, (B) reasonable accountants and attorneys’ fees and expenses incurred in connection with the Defeasance, (C) the costs and expenses of the Rating Agencies, if the Loan is the subject of a Securitization, (D) any revenue, documentary stamp or intangible taxes or any other tax or charge due in connection with the transfer of the Note, or otherwise required to accomplish the Defeasance (including any costs and expenses incurred or to be incurred in the purchase of the Defeasance Collateral) and (E) the costs and expenses of Servicer and any trustee, including reasonable attorneys’ feescontinuing. (b) With respect to a Defeasance pursuant to Section 9.1(a), the Borrower shall deposit the Defeasance Collateral in accordance with Section 9.1(b)(ii) to the Defeasance Collateral Account. Defeasance shall be permitted at such time as all of the following events shall have occurred: (i) the Defeasance Collateral Account shall have been established pursuant to Section 9.1(e); (ii) Borrower shall have delivered or caused to have been delivered to Lender the Defeasance Collateral for deposit into the Defeasance Collateral Account such that it will satisfy the Defeasance Collateral Requirement at the time of delivery and all such Defeasance Collateral, if in registered form, shall be registered in the name of Lender or its nominee (and, if registered in nominee name endorsed to Lender or in blank) and, if issued in book-entry form, the name of Lender or its nominee shall appear as the owner of such securities on the books of the Federal Reserve Bank or other party maintaining such book-entry system; (iii) Borrower shall have granted or caused to have been granted to Lender a valid perfected first priority security interest in the Defeasance Collateral and all proceeds thereof; (iv) Borrower shall have delivered or caused to be delivered to Lender an Officers’ Certificate, dated as of the date of such delivery (x) that sets forth the aggregate face amount or unpaid principal amount, interest rate and maturity of all such Defeasance Collateral, a copy of the transaction journal, if any, or such other notification, if any, published by or on behalf of the Federal Reserve Bank or other party maintaining a book-entry system advising that Lender or its nominee is the owner of such securities issued in book-entry form, and (y) that states that: (1) Borrower owns the Defeasance Collateral being delivered to Lender free and clear of any and all Liens, security interests or other encumbrances (other than the Defeasance Security Agreement), and has not assigned any interest or participation therein (or, if any such interest or participation has been assigned, it has been released), and Borrower has full power and authority to pledge such Defeasance Collateral to Lender; (2) such Defeasance Collateral consists solely of Defeasance Eligible Investments; (3) such Defeasance Collateral satisfies the Defeasance Collateral Requirement, determined as of the date of delivery; and (4) the information set forth in the schedule attached to such Officer’s Certificate is correct and complete in all material respects as of the date of delivery (such schedule, which shall be attached to and form a part of such Officer’s Certificate, shall demonstrate satisfaction of the requirement set forth in clause (2) above, in a form reasonably acceptable to Lender);. (v) Borrower shall have delivered a certificate of Borrower’s independent certified public accountant certifying that the Defeasance Collateral purchased in connection with the Defeasance generates monthly amounts equal to or greater than the Defeasance Collateral Requirement and that such amounts are generated in each month prior to the related Payment Date (or in the case of the payment due on the Maturity Date, prior to the Maturity Date) in each such month; (vi) Borrower shall have delivered or caused to be delivered to Lender a Rating Agency Confirmation, Confirmation (if a Securitization has occurred, ) and such other documents and certificates as Lender or the Rating Agencies, may reasonably request, including a Non-Disqualification Opinion and Opinions of Counsel demonstrating that Borrower has satisfied the provisions of this Section 9.1(b) (including), including but not limited to, to an Opinion of Counsel stating, among other things, that Lender has a perfected first priority security interest in the Defeasance Collateral and that the Defeasance Security Agreement is enforceable in accordance with its terms). (c) For purposes of determining whether sufficient amounts of Defeasance Collateral are on deposit in the Defeasance Collateral Account, there shall be included only payments of principal and predetermined and certain income thereon (as reasonably determined by Lender and agreed to by Borrower without regard to any reinvestment of such amounts) that will occur on a stated date for a stated payment on or before the dates when such amounts may be required to be applied to pay the principal and interest when due on the Defeasance Notes Note (and/or any substitute notes, as applicable)) as of the Maturity Date, including, without limitation, the outstanding principal balance of the Defeasance Notes Note (and/or any substitute notes, as applicable) as of the Maturity Date. (d) Upon or after the delivery of Defeasance Collateral in accordance with Section 9.1(b) and the satisfaction of all other conditions provided for in this Section 9.1, Lender shall enter into appropriate release documentation. (e) On or before the date on which Borrower delivers Defeasance Collateral to Lender pursuant to Section 9.1(b), Borrower shall open at any Eligible Institution Approved Bank (or other bank subject to the next sentence hereof) at the time and acting as custodian for Lender, a defeasance collateral account (the Defeasance Collateral Account) which shall at all times be an Eligible Account, in which Borrower shall grant to Lender or reconfirm the grant to Lender of a security interest. The Defeasance Collateral Account shall contain (i) all Defeasance Collateral delivered by Borrower pursuant to Section 9.1(b), (ii) all payments received on Defeasance Collateral held in the Defeasance Collateral Account and (iii) all income or other gains from investment of moneys or other property deposited in the Defeasance Collateral Account. All such amounts, including all income from the investment or reinvestment thereof, shall be held by Lender, subject to withdrawal by Lender for the purposes set forth in this Section 9.1. Borrower shall be the owner of the Defeasance Collateral Account and shall report all income accrued on Defeasance Collateral for federal, state and local income tax purposes in its income tax return. (f) Lender shall withdraw, draw on or collect and apply the amounts that are on deposit in the Defeasance Collateral Account to pay when due the principal and all installments of interest and principal on the Defeasance NotesNote. Funds and other property in the Defeasance Collateral Account shall not be commingled with any other monies or property of Borrower or any Affiliate of Borrower. Lender shall not in any way be held liable by reason of any insufficiency in the Defeasance Collateral Account. (g) Borrower and Lender shall enter into any appropriate amendments to the Loan Documents necessitated by a Defeasance of the Loan, such amendments to be in form and substance reasonably acceptable to both Borrower and Lender.

Defeasance and Release. (a) On At any Payment Date time after the expiration of the Defeasance Lockout Period and prior to the Prepayment Lockout Release Date, provided that no Event of Default has occurred and is continuing and all of the conditions set forth in Section 9.1(b) are complied with, Lender hereby agrees that Borrower shall have the right to obtain a release of the Liens of the Security Instrument and the Assignment of Leases on either an Individual (i) a Release Property that has not been is subject to a prior Property Release or all of the Individual Properties that have not been subject to prior Property Releases pursuant to and in accordance with the requirements of Section 8.78.7 or (ii) the Property that has not been subject to prior Property Releases, in either case upon at least thirty (30) days prior written notice (or such shorter period of time as Lender permits in its sole discretion) and upon satisfaction of the following (such a release, after satisfaction of the other provisions of this Section 9.1(a), a Defeasance): (i) if only a portion of the Loan is the subject of the Defeasance, Borrower shall prepare all necessary documents to modify this Agreement, execution and to amend and restate the Notes and issue, with respect to each Individual Property that is the subject delivery of a Defeasancedefeasance note (the Defeasance Note), a substitute note in form and substance reasonably acceptable to Lender, dated as of the date of the Defeasance (which must be on a Payment Date), payable to Lender, having a principal balance in an amount equal to the Defeasance Collateral Requirement Percentage of the Allocated Loan Amount of the Individual Property which is the Release Property in connection with such Defeasance (each a Defeasance Note) and a series of other notes having an aggregate principal balance equal to the undefeased portion of the Loan (each an Undefeased Note). For purposes of determining the principal balance of each individual Undefeased Note, the principal amount of each Defeasance Note shall be applied on a pro rata basis to reduce the principal amount of each Undefeased Note. Each Defeased Note and Undefeased Note shall otherwise have terms identical to the Notes, except that a Defeased Note cannot be the subject of any further Defeasance Event.Requirement; (ii) Borrower shall execute the execution and deliver delivery of a pledge and security agreement (the Defeasance Security Agreement), in form and substance reasonably acceptable to Lender, dated as of the date of the Defeasance (which must be on a Payment Date), in favor of the Lender, pursuant to which the Lender is granted a perfected first priority security interest in the Defeasance Collateral.; (iii) In connection with any Defeasancethe execution and delivery of appropriate and reasonable agreements and/or instruments, Borrower may at its option, or if so required by the Lender or, if the Loan is the subject of a Securitization, applicable Rating Agencies shall, establish or designate a successor entity (Successor Borrower) each in form and substance reasonably acceptable to Lender andLender, if pursuant to which the Loan is the subject obligations and liabilities of a Securitization, the Rating Agencies, which shall be a single purpose bankruptcy remote entity, and Borrower shall transfer and assign all obligations, rights and duties under and to the Defeased Note(s), together with the Defeasance Collateral to such Successor Borrower. Such Successor Borrower shall assume the obligations under the Defeased Note(s) Note and the Defeasance Security Agreement and Borrower shall be relieved are assumed by a new entity which satisfies all of its obligations under such documents. Borrower shall pay One Thousand and 00/100 Dollars ($1,000) to any such Successor Borrower as consideration for assuming the obligations under the Defeased Note(s) and the Security Agreement.Single Purpose Entity requirements; (iv) if a Securitization has occurred, Borrower shall deliver delivery of a Rating Agency Confirmation.; and (v) Borrower shall deliver an Officer’s Certificate certifying that the requirements set forth in this Section 9.1 have been satisfied no Event of Default has occurred and that the information delivered to Lender for purposes of making the calculations referred to in Section 9.1(a)(vii) below is true and correct. (vi) Borrower shall have paid to Lender all accrued and unpaid interest on the Principal Amount of the Loan, together with all other sums (not including scheduled interest or principal payments) then due under this Agreement, the Security Instruments and the other Loan Documents. (vii) The Lender shall have determined that the Loan to Value Test is satisfied and the Release DSCR Test is satisfied. (viii) Borrower shall pay all costs and expenses of Lender incurred in connection with the Defeasance, including (A) any costs and expenses associated with a release of the Lien of the Security Instrument as provided in Section 2.3.3 hereof, (B) reasonable accountants and attorneys’ fees and expenses incurred in connection with the Defeasance, (C) the costs and expenses of the Rating Agencies, if the Loan is the subject of a Securitization, (D) any revenue, documentary stamp or intangible taxes or any other tax or charge due in connection with the transfer of the Note, or otherwise required to accomplish the Defeasance (including any costs and expenses incurred or to be incurred in the purchase of the Defeasance Collateral) and (E) the costs and expenses of Servicer and any trustee, including reasonable attorneys’ feescontinuing. (b) With respect to a Defeasance pursuant to Section 9.1(a), the Borrower shall deposit the Defeasance Collateral in accordance with Section 9.1(b)(ii) to the Defeasance Collateral Account. Defeasance shall be permitted at such time as all of the following events shall have occurred: (i) the Defeasance Collateral Account shall have been established pursuant to Section 9.1(e); (ii) Borrower shall have delivered or caused to have been delivered to Lender the Defeasance Collateral for deposit into the Defeasance Collateral Account such that it will satisfy the Defeasance Collateral Requirement at the time of delivery and all such Defeasance Collateral, if in registered form, shall be registered in the name of Lender or its nominee (and, if registered in nominee name endorsed to Lender or in blank) and, if issued in book-entry form, the name of Lender or its nominee shall appear as the owner of such securities on the books of the Federal Reserve Bank or other party maintaining such book-entry system; (iii) Borrower shall have granted or caused to have been granted to Lender a valid perfected first priority security interest in the Defeasance Collateral and all proceeds thereof; (iv) Borrower shall have delivered or caused to be delivered to Lender an Officers’ ' Certificate, dated as of the date of such delivery (x) that sets forth the aggregate face amount or unpaid principal amount, interest rate and maturity of all such Defeasance Collateral, a copy of the transaction journal, if any, or such other notification, if any, published by or on behalf of the Federal Reserve Bank or other party maintaining a book-entry system advising that Lender or its nominee is the owner of such securities issued in book-entry form, and (y) that states that: (1) Borrower owns the Defeasance Collateral being delivered to Lender free and clear of any and all Liens, security interests or other encumbrances (other than the Defeasance Security Agreement), and has not assigned any interest or participation therein (or, if any such interest or participation has been assigned, it has been released), and Borrower has full power and authority to pledge such Defeasance Collateral to Lender; (2) such Defeasance Collateral consists solely of Defeasance Eligible Investments; (3) such Defeasance Collateral satisfies the Defeasance Collateral Requirement, determined as of the date of delivery; and (4) the information set forth in the schedule attached to such Officer’s 's Certificate is correct and complete in all material respects as of the date of delivery (such schedule, which shall be attached to and form a part of such Officer’s 's Certificate, shall demonstrate satisfaction of the requirement set forth in clause (2) above, in a form reasonably acceptable to Lender);. (v) Borrower shall have delivered a certificate of Borrower’s independent certified public accountant certifying that the Defeasance Collateral purchased in connection with the Defeasance generates monthly amounts equal to or greater than the Defeasance Collateral Requirement and that such amounts are generated in each month prior to the related Payment Date (or in the case of the payment due on the Maturity Date, prior to the Maturity Date) in each such month; (vi) Borrower shall have delivered or caused to be delivered to Lender a Rating Agency Confirmation, Confirmation (if a Securitization has occurred, ) and such other documents and certificates as Lender or the Rating Agencies, may reasonably request, including a Non-Disqualification Opinion and Opinions of Counsel demonstrating that Borrower has satisfied the provisions of this Section 9.1(b) (including), including but not limited to, to an Opinion of Counsel stating, among other things, that Lender has a perfected first priority security interest in the Defeasance Collateral and that the Defeasance Security Agreement is enforceable in accordance with its terms). (c) For purposes of determining whether sufficient amounts of Defeasance Collateral are on deposit in the Defeasance Collateral Account, there shall be included only payments of principal and predetermined and certain income thereon (as reasonably determined by Lender and agreed to by Borrower without regard to any reinvestment of such amounts) that will occur on a stated date for a stated payment on or before the dates when such amounts may be required to be applied to pay the principal and interest when due on the Defeasance Notes Note (and/or any substitute notes, as applicable)) as of the Maturity Date, including, without limitation, the outstanding principal balance of the Defeasance Notes Note (and/or any substitute notes, as applicable) as of the Maturity Date. (d) Upon or after the delivery of Defeasance Collateral in accordance with Section 9.1(b) and the satisfaction of all other conditions provided for in this Section 9.1, Lender shall enter into appropriate release documentation. (e) On or before the date on which Borrower delivers Defeasance Collateral to Lender pursuant to Section 9.1(b), Borrower shall open at any Eligible Institution Approved Bank (or other bank subject to the next sentence hereof) at the time and acting as custodian for Lender, a defeasance collateral account (the Defeasance Collateral Account) which shall at all times be an Eligible Account, in which Borrower shall grant to Lender or reconfirm the grant to Lender of a security interest. The Defeasance Collateral Account shall contain (i) all Defeasance Collateral delivered by Borrower pursuant to Section 9.1(b9. 1(b), (ii) all payments received on Defeasance Collateral held in the Defeasance Collateral Account and (iii) all income or other gains from investment of moneys or other property deposited in the Defeasance Collateral Account. All such amounts, including all income from the investment or reinvestment thereof, shall be held by Lender, subject to withdrawal by Lender for the purposes set forth in this Section 9.1. Borrower shall be the owner of the Defeasance Collateral Account and shall report all income accrued on Defeasance Collateral for federal, state and local income tax purposes in its income tax return. (f) Lender shall withdraw, draw on or collect and apply the amounts that are on deposit in the Defeasance Collateral Account to pay when due the principal and all installments of interest and principal on the Defeasance NotesNote. Funds and other property in the Defeasance Collateral Account shall not be commingled with any other monies or property of Borrower or any Affiliate of Borrower. Lender shall not in any way be held liable by reason of any insufficiency in the Defeasance Collateral Account. (g) Borrower and Lender shall enter into any appropriate amendments to the Loan Documents necessitated by a Defeasance of the Loan, such amendments to be in form and substance reasonably acceptable to both Borrower and Lender.