Defeasance; Prepayment. (a) Except as set forth in this Section 15.01, no prepayment or defeasance of the Debt may be made by or on behalf of Borrower in whole or in part. (b) Borrower may defease the Loan at any time subsequent to the earlier to occur of (x) the second (2nd) anniversary of a Securitization or (y) the third (3rd) anniversary of the date hereof and prior to the calendar month immediately preceding the Maturity Date, in whole or, from time to time, in part, as of the last day of an Interest Accrual Period, it being acknowledged that Borrower may defease the Loan on a day other than the last day of an Interest Accrual Period, provided that Borrower pays all interest which would otherwise be due to Lender through the end of such Interest Accrual Period, in accordance with the following provisions: (i) Lender shall have received from Borrower, not less than thirty (30) days’, nor more than ninety (90) days’, prior written notice specifying the date proposed for such defeasance and the amount which is to be defeased, which proposed date shall be as of a Payment Date (which notice shall be revocable by Borrower three (3) times during the term of the Loan by giving Lender not less than two (2) Business Days prior written notice of such revocation, provided that Borrower shall remain obligated to pay Lender’s costs and expenses including, without limitation, breakage costs incurred by Lender in connection with such revocation). (ii) Borrower shall also pay to Lender all interest due through and including the last day of the Interest Accrual Period ending on the day prior to the Payment Date in which such defeasance is being made, together with any and all other amounts due and owing pursuant to the terms of the Note, this Security Instrument or the other Loan Documents, including, without limitation, any costs incurred in connection with a defeasance. (iii) No Event of Default shall have occurred and be continuing. (iv) Borrower shall (A) either pay the Defeasance Deposit, or if Borrower shall elect, purchase the Federal Obligations and (B) deliver to Lender (1) a security agreement, in form and substance reasonably satisfactory to Lender, creating a first priority lien on the Defeasance Deposit (if applicable) and the Federal Obligations purchased by or on behalf of Borrower in accordance with the terms of this Section 15.01(b)(iv) (the “Security Agreement”); (2) an Officer’s Certificate certifying that the requirements set forth in this Section 15.01(b)(iv) have been satisfied; (3) an opinion of counsel for Borrower in form and substance reasonably satisfactory to Lender stating, among other things, that (x) Lender has a perfected security interest in the Defeasance Deposit (if applicable) and a first priority perfected security interest in the Federal Obligations purchased by Lender on behalf of Borrower or by Borrower, as applicable, (y) the contemplated defeasance will not result in any deemed exchange pursuant to Section 1001 of the Code of the Note and will not adversely affect the Note’s or, if applicable, the undefeased Note’s status as indebtedness for Federal income tax purposes and (z) any trust formed as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code (“REMIC”) in connection with a Securitization will not fail to maintain its status as a REMIC as a result of such defeasance; (4) in the event that only a portion of the Loan is being defeased, Borrower shall execute and deliver all necessary documents to split the Note into two substitute notes, one having a principal balance equal to the defeased portion of the Note (the “Defeased Note”) and one note having a principal balance equal to the undefeased portion of the Note (the “Undefeased Note”), the amortization schedule for which notes shall be calculated, in the case of a Defeased Note, or recalculated, in the case of an Undefeased Note, to amortize the respective principal balances of each on the same schedule as the Note (including, without limitation, the payment of the Principal Amount due on the Maturity Date); (5) a certificate, in form and substance reasonably satisfactory to Lender from a nationally recognized Independent certified public accountant confirming that the requirements of this Section 15.01(b) have been satisfied; and (6) such other certificates, documents, opinions or instruments as Lender may reasonably request. Borrower reserves the right to purchase Federal Obligations with and in lieu of making the Defeasance Deposit which provide Scheduled Defeasance Payments, and, if Borrower shall deliver the Defeasance Deposit to Lender, appoints Lender as its agent and attorney-in-fact, coupled with an interest (which appointment will not be exercised if Borrower notifies Lender in writing in the notice provided for in Section 15.01(b)(i) that Borrower will purchase the Federal Obligations), for the purpose of using the Defeasance Deposit to purchase Federal Obligations which provide Scheduled Defeasance Payments, and Lender shall, upon receipt of the Defeasance Deposit, purchase such Federal Obligations on behalf of Borrower. Borrower, pursuant to the Security Agreement or other appropriate document, shall authorize and direct that the payments received from the Federal Obligations shall be made directly to Lender and applied to satisfy the obligations of Borrower under the Defeased Note. The Defeased Note and the Undefeased Note shall have identical terms as the Note, except for the principal balance. A Defeased Note cannot be the subject of a further defeasance. (v) The Rating Agencies shall have confirmed in writing that any rating issued by the Rating Agencies in connection with the Securitization will not, as a result of the proposed defeasance, be downgraded, from the then current ratings thereof, qualified or withdrawn. (vi) If the Loan is to be defeased and Borrower is requesting a release of the Property in connection with such defeasance, such defeasance shall be to facilitate the disposition or refinancing of the Property or in connection with any other customary transaction within the meaning of Treas. Reg. 1.860G-(2)(a)(8)(iii). (vii) If Borrower shall continue to own any assets other than the Defeasance Deposit, Borrower shall establish or designate a special-purpose bankruptcy-remote successor entity reasonably acceptable to Lender (the “Successor Borrower”), with respect to which a substantive nonconsolidation opinion satisfactory in form and substance reasonably satisfactory to Lender has been delivered to Lender and Borrower shall transfer and assign to the Successor Borrower all obligations, rights and duties under the Note and the Security Agreement, together with the pledged Defeasance Deposit. The Successor Borrower shall assume the obligations of Borrower under the Note and the Security Agreement and Borrower shall be relieved of its obligations hereunder and thereunder. Borrower shall pay Ten and No/100 Dollars ($10.00) to the Successor Borrower as consideration for assuming such Borrower obligations. (viii) In the event the Loan is defeased in full in accordance with the terms hereof, Lender shall release all reserves, escrows and guaranties relating to the Loan to Borrower and in the event the Loan is defeased in part in connection with a Release in accordance with the terms hereof, Lender shall release to Borrower all reserves and escrows relating to the Property subject to the Release. (c) At any time subsequent to the Payment Date occurring in February, 2017 (the “Lockout Expiration Date”), Borrower may prepay the Loan, in whole, but not in part, as of the last day of an Interest Accrual Period, it being acknowledged that Borrower may prepay the Loan on a day other than the last day of an Interest Accrual Period, provided that Borrower pays all interest which would otherwise be due to Lender through the end of such Interest Accrual Period, in accordance with the following provisions: (i) Lender shall have received from Borrower not less than thirty (30) days , nor more than ninety (90) days, prior written notice specifying the date proposed for such prepayment and the amount which is to be prepaid (which notice shall be revocable by Borrower up to two (2) times during the term of the Loan by giving Lender not less than one (1) Business Day prior written notice of such revocation, provided that Borrower shall remain obligated to pay Lender’s costs and expenses including, without limitation, breakage costs incurred by Lender in connection with such revocation). (ii) Borrower shall also pay to Lender all interest due through and including the last day of the Interest Accrual Period in which such prepayment is being made, together with any and all other amounts due and owing pursuant to the terms of the Note, this Security Instrument or the other Loan Documents. (iii) Any partial prepayment shall be in a minimum amount not less than $25,000 and shall be in whole multiples of $1,000 in excess thereof. (iv) No Event of Default shall have occurred and be continuing. (v) Any partial prepayment of the Principal Amount, including, without limitation, Unscheduled Payments, shall be applied to the installments of principal last due hereunder and shall not release or relieve Borrower from the obligation to pay the regularly scheduled installments of principal and interest becoming due under the Note.
Appears in 3 contracts
Samples: Mortgage, Security Agreement, Assignment of Rents and Fixture Filing (Ashford Hospitality Trust Inc), Mortgage, Security Agreement, Assignment of Rents and Fixture Filing (Ashford Hospitality Trust Inc), Mortgage, Security Agreement, Assignment of Rents and Fixture Filing (Ashford Hospitality Trust Inc)
Defeasance; Prepayment. (a) Except as set forth in The principal balance of this Section 15.01, no prepayment or defeasance of the Debt Note may not be made by or on behalf of Borrower prepaid in whole or in part.
(b) Borrower may defease the Loan at any time subsequent ; except with respect to the earlier to occur application of Involuntary Prepayments (xas defined below) the second (2nd) anniversary of a Securitization or (y) the third (3rd) anniversary of the date hereof and prior to the Maturity Date; provided, however, Borrower shall have the right and option to obtain a release of the Mortgaged Property from the lien of the Mortgage in accordance with the terms and provisions set forth in Paragraph 11 of the Mortgage ("Defeasance"). Notwithstanding the foregoing sentence, Borrower shall have the privilege to prepay the entire amount of the outstanding Debt on the first (1st) day of any of the four (4) calendar month immediately months preceding the month in which the scheduled Maturity Date occurs without the payment of the Yield Maintenance Premium or any other premium or penalty. If prior to the scheduled Maturity Date (excluding, however, during the four (4) months preceding the scheduled Maturity Date) and during the existence of any Event of Default Borrower shall tender payment of an amount sufficient to satisfy the entire outstanding Debt prior to a sale of the Mortgaged Property either through foreclosure or the exercise of the other remedies available to Lender under the Mortgage, such tender by Borrower shall be deemed to be a voluntary prepayment and Borrower shall pay Lender, in whole oraddition to the Debt, from time the greater of (1) the Yield Maintenance Premium calculated pursuant to time, in part, as Paragraph 11 of the last day Mortgage that would be required if the entire outstanding unpaid principal balance of an Interest Accrual Periodthe Note were subject to a Defeasance pursuant to said Paragraph 11 or (2)(A) if said prepayment is made prior to the First Defeasance Date (defined in Paragraph 11 of the Mortgage), it being acknowledged that Borrower may defease the Loan on a day other than the last day of an Interest Accrual Period, provided that Borrower pays all interest which would otherwise be due to Lender through the end two percent (2%) of such Interest Accrual Periodentire outstanding unpaid principal balance or (B) if said prepayment is made on or after the First Defeasance Date (excluding, however, during the four (4) months preceding the scheduled Maturity Date), one percent (1%) of such entire outstanding unpaid principal balance. Borrower shall not be required to pay any Yield Maintenance Premium or any other premium or penalty if, in accordance with the following provisions:
terms and conditions of the Mortgage, Lender receives a prepayment of all or any portion of the Debt from (i) Lender shall have received from Borrower, not less than thirty (30) days’, nor more than ninety (90) days’, prior written notice specifying the date proposed for such defeasance and the amount which is to be defeased, which proposed date shall be as of a Payment Date (which notice shall be revocable by Borrower three (3) times during the term of the Loan by giving Lender not less than two (2) Business Days prior written notice of such revocation, provided that Borrower shall remain obligated to pay Lender’s costs and expenses including, without limitation, breakage costs incurred by Lender in connection with such revocation).
(ii) Borrower shall also pay to Lender all interest due through and including the last day of the Interest Accrual Period ending on the day prior to the Payment Date in which such defeasance is being made, together with any and all insurance proceeds or other amounts due and owing pursuant to the terms of the Note, this Security Instrument or the other Loan Documents, including, without limitation, any costs incurred in connection with a defeasance.
(iii) No Event of Default shall have occurred and be continuing.
(iv) Borrower shall (A) either pay the Defeasance Deposit, or if Borrower shall elect, purchase the Federal Obligations and (B) deliver to Lender (1) a security agreement, in form and substance reasonably satisfactory to Lender, creating a first priority lien on the Defeasance Deposit (if applicable) and the Federal Obligations purchased by or on behalf of Borrower in accordance with the terms of this Section 15.01(b)(iv) (the “Security Agreement”); (2) an Officer’s Certificate certifying that the requirements set forth in this Section 15.01(b)(iv) have been satisfied; (3) an opinion of counsel for Borrower in form and substance reasonably satisfactory to Lender stating, among other things, that (x) Lender has a perfected security interest in the Defeasance Deposit (if applicable) and a first priority perfected security interest in the Federal Obligations purchased by Lender on behalf of Borrower or by Borrower, as applicable, (y) the contemplated defeasance will not result in any deemed exchange pursuant to Section 1001 of the Code of the Note and will not adversely affect the Note’s or, if applicable, the undefeased Note’s status as indebtedness for Federal income tax purposes and (z) any trust formed as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code (“REMIC”) in connection with a Securitization will not fail to maintain its status as a REMIC payments as a result of fire or other casualties or (ii) awards or other payments made in any condemnation or eminent domain proceedings (each an "Involuntary Prepayment") and any such defeasanceInvoluntary Prepayment is applied by Lender towards reduction of the Debt; provided, however, if an Event of Default exists and Lender has accelerated the Maturity Date when an Involuntary Prepayment is applied to the Debt, then Borrower shall pay to Lender an additional amount equal to the greater of (1) the Yield Maintenance Premium calculated pursuant to Paragraph 11 of the Mortgage that would be required if the Involuntary Prepayment were subject to a Defeasance pursuant to said Paragraph 11 or (2)(A) if the Involuntary Prepayment is made prior to the First Defeasance Date, two percent (2%) of the Involuntary Prepayment or (B) if the Involuntary Prepayment is made on or after the First Defeasance Date (excluding, however, during the three four (4) in preceding the event that only a portion of the Loan is being defeased, Borrower shall execute and deliver all necessary documents to split the Note into two substitute notes, one having a principal balance equal to the defeased portion of the Note (the “Defeased Note”) and one note having a principal balance equal to the undefeased portion of the Note (the “Undefeased Note”), the amortization schedule for which notes shall be calculated, in the case of a Defeased Note, or recalculated, in the case of an Undefeased Note, to amortize the respective principal balances of each on the same schedule as the Note (including, without limitation, the payment of the Principal Amount due on the scheduled Maturity Date); , one percent (51%) a certificate, in form and substance reasonably satisfactory to Lender from a nationally recognized Independent certified public accountant confirming that the requirements of this Section 15.01(b) have been satisfied; and (6) such other certificates, documents, opinions or instruments as Lender may reasonably request. Borrower reserves the right to purchase Federal Obligations with and in lieu of making the Defeasance Deposit which provide Scheduled Defeasance Payments, and, if Borrower shall deliver the Defeasance Deposit to Lender, appoints Lender as its agent and attorney-in-fact, coupled with an interest (which appointment will not be exercised if Borrower notifies Lender in writing in the notice provided for in Section 15.01(b)(i) that Borrower will purchase the Federal Obligations), for the purpose of using the Defeasance Deposit to purchase Federal Obligations which provide Scheduled Defeasance Payments, and Lender shall, upon receipt of the Defeasance Deposit, purchase such Federal Obligations on behalf of Borrower. Borrower, pursuant to the Security Agreement or other appropriate document, shall authorize and direct that the payments received from the Federal Obligations shall be made directly to Lender and applied to satisfy the obligations of Borrower under the Defeased Note. The Defeased Note and the Undefeased Note shall have identical terms as the Note, except for the principal balance. A Defeased Note cannot be the subject of a further defeasanceInvoluntary Prepayment.
(v) The Rating Agencies shall have confirmed in writing that any rating issued by the Rating Agencies in connection with the Securitization will not, as a result of the proposed defeasance, be downgraded, from the then current ratings thereof, qualified or withdrawn.
(vi) If the Loan is to be defeased and Borrower is requesting a release of the Property in connection with such defeasance, such defeasance shall be to facilitate the disposition or refinancing of the Property or in connection with any other customary transaction within the meaning of Treas. Reg. 1.860G-(2)(a)(8)(iii).
(vii) If Borrower shall continue to own any assets other than the Defeasance Deposit, Borrower shall establish or designate a special-purpose bankruptcy-remote successor entity reasonably acceptable to Lender (the “Successor Borrower”), with respect to which a substantive nonconsolidation opinion satisfactory in form and substance reasonably satisfactory to Lender has been delivered to Lender and Borrower shall transfer and assign to the Successor Borrower all obligations, rights and duties under the Note and the Security Agreement, together with the pledged Defeasance Deposit. The Successor Borrower shall assume the obligations of Borrower under the Note and the Security Agreement and Borrower shall be relieved of its obligations hereunder and thereunder. Borrower shall pay Ten and No/100 Dollars ($10.00) to the Successor Borrower as consideration for assuming such Borrower obligations.
(viii) In the event the Loan is defeased in full in accordance with the terms hereof, Lender shall release all reserves, escrows and guaranties relating to the Loan to Borrower and in the event the Loan is defeased in part in connection with a Release in accordance with the terms hereof, Lender shall release to Borrower all reserves and escrows relating to the Property subject to the Release.
(c) At any time subsequent to the Payment Date occurring in February, 2017 (the “Lockout Expiration Date”), Borrower may prepay the Loan, in whole, but not in part, as of the last day of an Interest Accrual Period, it being acknowledged that Borrower may prepay the Loan on a day other than the last day of an Interest Accrual Period, provided that Borrower pays all interest which would otherwise be due to Lender through the end of such Interest Accrual Period, in accordance with the following provisions:
(i) Lender shall have received from Borrower not less than thirty (30) days , nor more than ninety (90) days, prior written notice specifying the date proposed for such prepayment and the amount which is to be prepaid (which notice shall be revocable by Borrower up to two (2) times during the term of the Loan by giving Lender not less than one (1) Business Day prior written notice of such revocation, provided that Borrower shall remain obligated to pay Lender’s costs and expenses including, without limitation, breakage costs incurred by Lender in connection with such revocation).
(ii) Borrower shall also pay to Lender all interest due through and including the last day of the Interest Accrual Period in which such prepayment is being made, together with any and all other amounts due and owing pursuant to the terms of the Note, this Security Instrument or the other Loan Documents.
(iii) Any partial prepayment shall be in a minimum amount not less than $25,000 and shall be in whole multiples of $1,000 in excess thereof.
(iv) No Event of Default shall have occurred and be continuing.
(v) Any partial prepayment of the Principal Amount, including, without limitation, Unscheduled Payments, shall be applied to the installments of principal last due hereunder and shall not release or relieve Borrower from the obligation to pay the regularly scheduled installments of principal and interest becoming due under the Note.
Appears in 2 contracts
Samples: Mortgage Note (American Realty Capital Healthcare Trust Inc), Mortgage Note (American Realty Capital Healthcare Trust Inc)
Defeasance; Prepayment. (a) Except as set forth in this Section 15.01, no prepayment or defeasance of the Debt may be made by or on behalf of Borrower in whole or in part.
(b) Borrower may defease the Loan at any time subsequent to the earlier to occur of (x) the second (2nd) anniversary of a the last Securitization involving any portion of the Loan or (y) the third (3rd) anniversary of the date hereof and prior to the calendar month immediately preceding the Maturity Date, in whole or, from time to time, in part, as of the last day of an Interest Accrual Period, it being acknowledged that Borrower may defease the Loan on a day other than the last day of an Interest Accrual Period, provided that Borrower pays all interest which would otherwise be due to Lender through the end of such Interest Accrual Period, in accordance with the following provisions:
(i) Lender shall have received from Borrower, not less than thirty (30) days’', nor more than ninety (90) days’', prior written notice specifying the date proposed for such defeasance and the amount which is to be defeased, which proposed date shall be as of a Payment Date (which notice shall be revocable by Borrower three (3) times during the term of the Loan by giving Lender not less than two (2) Business Days prior written notice of such revocation, provided that Borrower shall remain obligated to pay Lender’s costs and expenses including, without limitation, breakage costs incurred by Lender in connection with such revocation)Date.
(ii) Borrower shall also pay to Lender all interest due through and including the last day of the Interest Accrual Period ending on the day prior to the Payment Date in which such defeasance is being made, together with any and all other amounts due and owing pursuant to the terms of the Note, this Security Instrument or the other Loan Documents, including, without limitation, any costs incurred in connection with a defeasance.
(iii) No Event of Default shall have occurred and be continuing.
(iv) Borrower shall (A) either pay the Defeasance Deposit, or if Borrower shall elect, purchase Deposit on the Federal Obligations date of such defeasance and (B) deliver to Lender (1) a security agreement, in form and substance reasonably satisfactory to Lender, creating a first priority lien on the Defeasance Deposit (if applicable) and the Federal Obligations purchased by or on behalf of Borrower with the Defeasance Deposit in accordance with the terms of this Section 15.01(b)(iv) (the “"Security Agreement”"); (2) an Officer’s 's Certificate certifying that the requirements set forth in this Section 15.01(b)(iv) have been satisfied; (3) an opinion of counsel for Borrower in form and substance reasonably satisfactory to Lender stating, among other things, that (x) Lender has a perfected security interest in the Defeasance Deposit (if applicable) and a first priority perfected security interest in the Federal Obligations purchased by Lender on behalf of Borrower or by Borrower, as applicable, (y) the contemplated defeasance will not result in any deemed exchange pursuant to Section 1001 of the ofthe Code of the Note and will not adversely affect the Note’s 's or, if applicable, the undefeased Note’s 's status as indebtedness for Federal income tax purposes and (z) any trust formed as a “"real estate mortgage investment conduit” " within the meaning of Section 860D of the Code (“"REMIC”") in connection with a Securitization will not fail to maintain its status as a REMIC as a result of such defeasance; (4) in the event that only a portion of the Loan is being defeased, Borrower shall execute and deliver all necessary documents to split the Note into two substitute notes, one having a principal balance equal to the defeased portion of the Note (the “"Defeased Note”") and one note having a principal balance equal to the undefeased portion of the Note (the “"Undefeased Note”"), the amortization schedule for which notes shall be calculated, in the case of a Defeased Note, or recalculated, in the case of an Undefeased Note, to amortize the respective principal balances of each on the same schedule as the Note (including, without limitation, the payment of the Principal Amount due on the Maturity Date); (5) a certificate, in form and substance reasonably satisfactory to Lender from a nationally recognized Independent certified public accountant confirming that the requirements of this Section 15.01(b) have been satisfied; and (6) such other certificates, documents, opinions or instruments as Lender may reasonably request. Borrower reserves the right to purchase Federal Obligations with and in lieu of making the Defeasance Deposit which provide Scheduled Defeasance Payments, and, if Borrower shall deliver the Defeasance Deposit to Lender, and appoints Lender as its agent and attorney-attorney in-fact, coupled with an interest (which appointment will not be exercised if Borrower notifies Lender in writing in the notice provided for in Section 15.01(b)(i) that Borrower will purchase be purchasing the Federal Obligations), for the purpose of using the Defeasance Deposit to purchase Federal Obligations which provide Scheduled Defeasance Payments, and Lender shall, upon receipt of the Defeasance Deposit, purchase such Federal Obligations on behalf of Borrower. Borrower, pursuant to the Security Agreement or other appropriate document, shall authorize and direct that the payments received from the Federal Obligations shall be made directly to Lender and applied to satisfy the obligations of Borrower under the Defeased Note. The Defeased Note and the Undefeased Note shall have identical terms as the Note, except for the principal balance. A Defeased Note cannot be the subject of a further defeasance.
(v) The Rating Agencies shall have confirmed in writing that any rating issued by the Rating Agencies in connection with the Securitization will not, as a result of the proposed defeasance, be downgraded, from the then current ratings thereof, qualified or withdrawn.
(vi) If the Loan is to be defeased and Borrower is requesting a release of the Property in connection with such defeasance, such defeasance shall be to facilitate the disposition or refinancing of the Property or in connection with any other customary transaction within the meaning of Treas. Reg. 1.860G-(2)(a)(8)(iii).
(vii) If In the event of a defeasance of the Loan in whole, but not in part, if Borrower shall continue to own any assets other than the Defeasance Deposit, Borrower shall establish or designate a special-purpose bankruptcy-remote successor entity reasonably acceptable to Lender (the “"Successor Borrower”"), with respect to which a substantive nonconsolidation opinion satisfactory in form and substance reasonably satisfactory to Lender has been delivered to Lender and Borrower shall transfer and assign to the Successor Borrower all obligations, rights and duties under the Note and the Security Agreement, together with the pledged Defeasance Deposit. The Successor Borrower shall assume the obligations of Borrower under the Note and the Security Agreement and Borrower shall be relieved of its obligations hereunder and thereunder. Borrower shall pay Ten and No/100 Dollars ($10.00) to the Successor Borrower as consideration for assuming such Borrower obligations.
(viii) In the event the Loan is defeased in full in accordance with the terms hereof, Lender shall promptly release all reserves, escrows and guaranties relating to the Loan to Borrower and in the event the Loan is defeased in part in connection with a Release in accordance with the terms hereof, Lender shall release to Borrower all reserves and escrows relating to the Property subject to the ReleaseBorrower.
(c) At any time subsequent to the Payment Date occurring in FebruaryOctober, 2017 2016 (the “"Lockout Expiration Date”"), Borrower may prepay the Loan, in whole, but not in part, as of the last day of an Interest Accrual Period, it being acknowledged that Borrower may prepay the Loan on a day other than the last day of an Interest Accrual Period, provided that Borrower pays all interest which would otherwise be due to Lender through the end of such Interest Accrual Period, in accordance with the following provisions:
(i) Lender shall have received from Borrower Borrower, not less than thirty (30) days days', nor more than ninety (90) days', prior written notice specifying the date proposed for such prepayment and the amount which is to be prepaid (which notice shall be revocable by Borrower up to two (2) times during the term of the Loan by giving Lender not less than one (1) Business Day prior written notice of such revocation, provided that Borrower shall remain obligated to pay Lender’s costs and expenses including, without limitation, breakage costs incurred by Lender in connection with such revocation)prepaid.
(ii) Borrower shall also pay to Lender all interest due through and including the last day of the Interest Accrual Period in which such prepayment is being made, together with any and all other amounts due and owing pursuant to the terms of the Note, this Security Secmity Instrument or the other Loan Documents.
(iii) Any partial prepayment shall be in a minimum amount not less than $25,000 and shall be in whole multiples of $1,000 in excess thereof.
(iv) No Event of Default shall have occurred and be continuing.
(v) Any partial prepayment of the Principal Amount, including, without limitation, Unscheduled Payments, shall be applied to the installments of principal last due hereunder and shall not release or relieve Borrower from the obligation to pay the regularly scheduled installments of principal and interest becoming due under the Note.
Appears in 1 contract
Defeasance; Prepayment. (a) Except as set forth in this Section 15.01, no prepayment or defeasance of the Debt may be made by or on behalf of Borrower in whole or in part.
(b) Borrower may defease the Loan at any time subsequent to the earlier to occur of (x) the second (2nd) anniversary of a Securitization or (y) the third three (3rd) anniversary of the date hereof and prior to the calendar month immediately preceding the Maturity Date, in whole or, from time to time, in part, as of the last day of an Interest Accrual Period, it being acknowledged that Borrower may defease the Loan on a day other than the last day of an Interest Accrual Period, provided that Borrower pays all interest which would otherwise be due to Lender through the end of such Interest Accrual Period, in accordance with the following provisions:
(i) Lender shall have received from Borrower, not less than thirty (30) days’, nor more than ninety (90) days’, prior written notice specifying the date proposed for such defeasance and the amount which is to be defeased, which proposed date shall be as of a Payment Date (which notice shall be revocable by Borrower three (3) times during the term of the Loan by giving Lender not less than two (2) Business Days prior written notice of such revocation, provided that Borrower shall remain obligated to pay Lender’s costs and expenses including, without limitation, breakage costs incurred by Lender in connection with such revocation)Date.
(ii) Borrower shall also pay to Lender all interest due through and including the last day of the Interest Accrual Period ending on the day prior to the Payment Date in which such defeasance is being made, together with any and all other amounts due and owing pursuant to the terms of the Note, this Security Instrument or the other Loan Documents, including, without limitation, any costs incurred in connection with a defeasance.
(iii) No Event of Default shall have occurred and be continuing.
(iv) Borrower shall (A) either pay the Defeasance Deposit, or if Borrower shall elect, purchase the Federal Obligations Deposit and (B) deliver to Lender (1) a security agreement, in form and substance reasonably satisfactory to Lender, creating a first priority lien on the Defeasance Deposit (if applicable) and the Federal Obligations purchased by or on behalf of Borrower with the Defeasance Deposit in accordance with the terms of this Section 15.01(b)(iv) (the “Security Agreement”); (2) an Officer’s Certificate certifying that the requirements set forth in this Section 15.01(b)(iv) have been satisfied; (3) an opinion of counsel for Borrower in form and substance reasonably satisfactory to Lender stating, among other things, that (x) Lender has a perfected security interest in the Defeasance Deposit (if applicable) and a first priority perfected security interest in the Federal Obligations purchased by Lender on behalf of Borrower or by Borrower, as applicableXxxxxxxx, (y) the contemplated defeasance will not result in any deemed exchange pursuant to Section 1001 of the Code of the Note and will not adversely affect the Note’s or, if applicable, the undefeased Note’s status as indebtedness for Federal income tax purposes and (z) any trust formed as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code (“REMIC”) in connection with a Securitization will not fail to maintain its status as a REMIC as a result of such defeasance; (4) in the event that only a portion of the Loan is being defeased, Borrower shall execute and deliver all necessary documents to split the Note into two substitute notes, one having a principal balance equal to the defeased portion of the Note (the “Defeased Note”) and one note having a principal balance equal to the undefeased portion of the Note (the “Undefeased Note”), the amortization schedule for which notes shall be calculated, in the case of a Defeased Note, or recalculated, in the case of an Undefeased Note, to fully amortize the respective principal balances of each on a thirty (30) year schedule (commencing in the same schedule as the Note fourth (including, without limitation, the payment 4th) Loan Year) utilizing level monthly payments of the Principal Amount due on the Maturity Date)principal and interest; (5) a certificate, in form and substance reasonably satisfactory to Lender from a nationally recognized an Independent certified public accountant confirming that the requirements of this Section 15.01(b) have been satisfied; and (6) such other certificates, documents, opinions or instruments as Lender may reasonably request. Borrower reserves the right to purchase Federal Obligations with and in lieu of making the Defeasance Deposit which provide Scheduled Defeasance Payments, and, if Borrower shall deliver the Defeasance Deposit to Lender, hereby irrevocably appoints Lender as its agent and attorney-in-fact, coupled with an interest (which appointment will not be exercised if Borrower notifies Lender in writing in the notice provided for in Section 15.01(b)(i) that Borrower will purchase the Federal Obligations)interest, for the purpose of using the Defeasance Deposit to purchase Federal Obligations which provide Scheduled Defeasance Payments, and Lender shall, upon receipt of the Defeasance Deposit, purchase such Federal Obligations on behalf of Borrower. Borrower, pursuant to the Security Agreement or other appropriate document, shall authorize and direct that the payments received from the Federal Obligations shall be made directly to Lender and applied to satisfy the obligations of Borrower under the Defeased Note. The Defeased Note and the Undefeased Note shall have identical terms as the Note, except for the principal balance. A Defeased Note cannot be the subject of a further defeasance.
(v) The Rating Agencies shall have confirmed in writing that any rating issued by the Rating Agencies in connection with the Securitization will not, as a result of the proposed defeasance, be downgraded, from the then current ratings thereof, qualified or withdrawn.
(vi) If the Loan is to be defeased and Borrower is requesting a release of the Property in connection with such defeasance, such defeasance shall be to facilitate the disposition or refinancing of the Property or in connection with any other customary transaction within the meaning of Treas. Reg. 1.860G-(2)(a)(8)(iii).
(vii) If In the event of a defeasance of the Loan in whole, but not in part, if Borrower shall continue to own any assets other than the Defeasance Deposit, Borrower shall establish or designate a special-purpose bankruptcy-remote successor entity reasonably acceptable to Lender (the “Successor Borrower”), with respect to which a substantive nonconsolidation opinion satisfactory in form and substance reasonably satisfactory to Lender has been delivered to Lender and Borrower shall transfer and assign to the Successor Borrower all obligations, rights and duties under the Note and the Security Agreement, together with the pledged Defeasance Deposit. The Successor Borrower shall assume the obligations of Borrower under the Note and the Security Agreement and Borrower shall be relieved of its obligations hereunder and thereunder. Borrower shall pay Ten and No/100 Dollars ($10.00) to the Successor Borrower as consideration for assuming such Borrower obligations.
(viii) In the event the Loan is defeased in full in accordance with the terms hereof, Lender shall release all reserves, escrows and guaranties relating to the Loan to Borrower and in the event the Loan is defeased in part in connection with a Release in accordance with the terms hereof, Lender shall release to Borrower all reserves and escrows relating to the Property subject to the ReleaseBorrower.
(c) At any time subsequent to the Payment Date occurring in FebruaryOctober, 2017 (the “Lockout Expiration Date”)2011, Borrower may prepay the Loan, in whole, but not in part, as of the last day of an Interest Accrual Period, it being acknowledged that Borrower may prepay the Loan on a day other than the last day of an Interest Accrual Period, provided that Borrower pays all interest which would otherwise be due to Lender through the end of such Interest Accrual Period, in accordance with the following provisions:
(i) Lender shall have received from Borrower Borrower, not less than thirty (30) days days’, nor more than ninety (90) days’, prior written notice specifying the date proposed for such prepayment and the amount which is to be prepaid (which notice shall be revocable by Borrower up to two (2) times during the term of the Loan by giving Lender not less than one (1) Business Day prior written notice of such revocation, provided that Borrower shall remain obligated to pay Lender’s costs and expenses including, without limitation, breakage costs incurred by Lender in connection with such revocation)prepaid.
(ii) Borrower shall also pay to Lender all interest due through and including the last day of the Interest Accrual Period in which such prepayment is being made, together with any and all other amounts due and owing pursuant to the terms of the Note, this Security Instrument or the other Loan Documents.
(iii) Any partial prepayment shall be in a minimum amount not less than $25,000 and shall be in whole multiples of $1,000 in excess thereof.
(iv) No Event of Default shall have occurred and be continuing.
(v) Any partial prepayment of the Principal Amount, including, without limitation, Unscheduled Payments, shall be applied to the installments of principal last due hereunder and shall not release or relieve Borrower from the obligation to pay the regularly scheduled installments of principal and interest becoming due under the Note.
Appears in 1 contract
Samples: Deed of Trust, Security Agreement, Assignment of Rents and Fixture Filing (Maguire Properties Inc)
Defeasance; Prepayment. (a) Except as set forth in this Section 15.01, no prepayment or defeasance of the Debt may be made by or on behalf of Borrower in whole or in part.
(b) Borrower may defease the Loan at any time subsequent to the earlier to occur of (x) the second (2nd) anniversary of a Securitization or (y) the third (3rd) anniversary of the date hereof and prior to the calendar month immediately preceding the Maturity Date, in whole or, from time to time, in part, as of the last day of an Interest Accrual Period, it being acknowledged that Borrower may defease the Loan on a day other than the last day of an Interest Accrual Period, provided that Borrower pays all interest which would otherwise be due to Lender through the end of such Interest Accrual Period, in accordance with the following provisions:
(i) Lender shall have received from Borrower, not less than thirty (30) days’, nor more than ninety (90) days’, prior written notice specifying the date proposed for such defeasance and the amount which is to be defeased, which proposed date shall be as of a Payment Date (which notice shall be revocable by Borrower three (3) times during the term of the Loan by giving Lender not less than two (2) Business Days prior written notice of such revocation, provided that Borrower shall remain obligated to pay Lender’s costs and expenses including, without limitation, breakage costs incurred by Lender in connection with such revocation).
(ii) Borrower shall also pay to Lender all interest due through and including the last day of the Interest Accrual Period ending on the day prior to the Payment Date in which such defeasance is being made, together with any and all other amounts due and owing pursuant to the terms of the Note, this Security Instrument or the other Loan Documents, including, without limitation, any costs incurred in connection with a defeasance.
(iii) No Event of Default shall have occurred and be continuing.
(iv) Borrower shall (A) either pay the Defeasance Deposit, or if Borrower shall elect, purchase the Federal Obligations and (B) deliver to Lender (1) a security agreement, in form and substance reasonably satisfactory to Lender, creating a first priority lien on the Defeasance Deposit (if applicable) and the Federal Obligations purchased by or on behalf of Borrower in accordance with the terms of this Section 15.01(b)(iv) (the “Security Agreement”); (2) an Officer’s Certificate certifying that the requirements set forth in this Section 15.01(b)(iv) have been satisfied; (3) an opinion of counsel for Borrower in form and substance reasonably satisfactory to Lender stating, among other things, that (x) Lender has a perfected security interest in the Defeasance Deposit (if applicable) and a first priority perfected security interest in the Federal Obligations purchased by Lender on behalf of Borrower or by Borrower, as applicable, (y) the contemplated defeasance will not result in any deemed exchange pursuant to Section 1001 of the Code of the Note and will not adversely affect the Note’s or, if applicable, the undefeased Note’s status as indebtedness for Federal income tax purposes and (z) any trust formed as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code (“REMIC”) in connection with a Securitization will not fail to maintain its status as a REMIC as a result of such defeasance; (4) in the event that only a portion of the Loan is being defeased, Borrower shall execute and deliver all necessary documents to split the Note into two substitute notes, one having a principal balance equal to the defeased portion of the Note (the “Defeased Note”) and one note having a principal balance equal to the undefeased portion of the Note (the “Undefeased Note”), the amortization schedule for which notes shall be calculated, in the case of a Defeased Note, or recalculated, in the case of an Undefeased Note, to amortize the respective principal balances of each on the same schedule as the Note (including, without limitation, the payment of the Principal Amount due on the Maturity Date); (5) a certificate, in form and substance reasonably satisfactory to Lender from a nationally recognized Independent certified public accountant confirming that the requirements of this Section 15.01(b) have been satisfied; and (6) such other certificates, documents, opinions or instruments as Lender may reasonably request. Borrower reserves the right to purchase Federal Obligations with and in lieu of making the Defeasance Deposit which provide Scheduled Defeasance Payments, and, if Borrower shall deliver the Defeasance Deposit to Lender, appoints Lender as its agent and attorney-in-fact, coupled with an interest (which appointment will not be exercised if Borrower notifies Lender in writing in the notice provided for in Section 15.01(b)(i) that Borrower will purchase the Federal Obligations), for the purpose of using the Defeasance Deposit to purchase Federal Obligations which provide Scheduled Defeasance Payments, and Lender shall, upon receipt of the Defeasance Deposit, purchase such Federal Obligations on behalf of Borrower. Borrower, pursuant to the Security Agreement or other appropriate document, shall authorize and direct that the payments received from the Federal Obligations shall be made directly to Lender and applied to satisfy the obligations of Borrower under the Defeased Note. The Defeased Note and the Undefeased Note shall have identical terms as the Note, except for the principal balance. A Defeased Note cannot be the subject of a further defeasance.
(v) The Rating Agencies shall have confirmed in writing that any rating issued by the Rating Agencies in connection with the Securitization will not, as a result of the proposed defeasance, be downgraded, from the then current ratings thereof, qualified or withdrawn.
(vi) If the Loan is to be defeased and Borrower is requesting a release of the Property in connection with such defeasance, such defeasance shall be to facilitate the disposition or refinancing of the Property or in connection with any other customary transaction within the meaning of Treas. Reg. 1.860G-(2)(a)(8)(iii).
(vii) If Borrower shall continue to own any assets other than the Defeasance Deposit, Borrower shall establish or designate a special-purpose bankruptcy-remote successor entity reasonably acceptable to Lender (the “Successor Borrower”), with respect to which a substantive nonconsolidation opinion satisfactory in form and substance reasonably satisfactory to Lender has been delivered to Lender and Borrower shall transfer and assign to the Successor Borrower all obligations, rights and duties under the Note and the Security Agreement, together with the pledged Defeasance Deposit. The Successor Borrower shall assume the obligations of Borrower under the Note and the Security Agreement and Borrower shall be relieved of its obligations hereunder and thereunder. Borrower shall pay Ten and No/100 Dollars ($10.00) to the Successor Borrower as consideration for assuming such Borrower obligations.
(viii) In the event the Loan is defeased in full in accordance with the terms hereof, Lender shall release all reserves, escrows and guaranties relating to the Loan to Borrower and in the event the Loan is defeased in part in connection with a Release in accordance with the terms hereof, Lender shall release to Borrower all reserves and escrows relating to the Property subject to shall be released from the Releaselien of this Security Instrument and any other Loan Documents.
(c) At any time subsequent to the Payment Date occurring in February, 2017 (the “Lockout Expiration Date”), Borrower may prepay the Loan, in whole, but not in part, as of the last day of an Interest Accrual Period, it being acknowledged that Borrower may prepay the Loan on a day other than the last day of an Interest Accrual Period, provided that Borrower pays all interest which would otherwise be due to Lender through the end of such Interest Accrual Period, in accordance with the following provisions:
(i) Lender shall have received from Borrower not less than thirty (30) days , nor more than ninety (90) days, prior written notice specifying the date proposed for such prepayment and the amount which is to be prepaid (which notice shall be revocable by Borrower up to two (2) times during the term of the Loan by giving Lender not less than one (1) Business Day prior written notice of such revocation, provided that Borrower shall remain obligated to pay Lender’s costs and expenses including, without limitation, breakage costs incurred by Lender in connection with such revocation).
(ii) Borrower shall also pay to Lender all interest due through and including the last day of the Interest Accrual Period in which such prepayment is being made, together with any and all other amounts due and owing pursuant to the terms of the Note, this Security Instrument or the other Loan Documents.
(iii) Any partial prepayment shall be in a minimum amount not less than $25,000 and shall be in whole multiples of $1,000 in excess thereof.
(iv) No Event of Default shall have occurred and be continuing.
(v) Any partial prepayment of the Principal Amount, including, without limitation, Unscheduled Payments, shall be applied to the installments of principal last due hereunder and shall not release or relieve Borrower from the obligation to pay the regularly scheduled installments of principal and interest becoming due under the Note.
Appears in 1 contract
Defeasance; Prepayment. (a) Except as set forth in this Section 15.01, no prepayment or defeasance of the Debt may be made by or on behalf of Borrower in whole or in part.
(b) Borrower may defease the Loan at any time subsequent to the earlier to occur of (x) the second (2nd) anniversary of a Securitization or (y) the third (3rd) anniversary of the date hereof and prior to the calendar month immediately preceding three (3) months prior to the Maturity Date, in whole or, from time to time, in part, as of the last day of an Interest Accrual Period, it being acknowledged that Borrower may defease the Loan on a day other than the last day of an Interest Accrual Period, provided that Borrower pays all interest which would otherwise be due to Lender through the end of such Interest Accrual Period, in accordance with the following provisions:
(i) Lender shall have received from Borrower, not less than thirty (30) days’', nor more than ninety (90) days’', prior written notice specifying the date proposed for such defeasance and the amount which is to be defeased, which proposed date shall be as of a Payment Date (which notice shall be revocable by Borrower three (3) times during the term of the Loan by giving Lender not less than two (2) Business Days prior written notice of such revocation, provided that Borrower shall remain obligated to pay Lender’s costs and expenses including, without limitation, breakage costs incurred by Lender in connection with such revocation)Date.
(ii) Borrower shall also pay to Lender all interest due through and including the last day of the Interest Accrual Period ending on the day prior to the Payment Date in which such defeasance is being made, together with any and all other amounts due and owing pursuant to the terms of the Note, this Security Instrument or the other Loan Documents, including, without limitation, any costs incurred in connection with a defeasance.
(iii) No Event of Default shall have occurred and be continuing.
(iv) Borrower shall (A) either pay the Defeasance Deposit, or if Borrower shall elect, purchase the Federal Obligations Deposit and (B) deliver to Lender (1) a security agreement, in form and substance reasonably satisfactory to Lender, creating a first priority lien on the Defeasance Deposit (if applicable) and the Federal Obligations purchased by or on behalf of Borrower with the Defeasance Deposit in accordance with the terms of this Section 15.01(b)(iv) (the “"Security Agreement”"); (2) an Officer’s 's Certificate certifying that the requirements set forth in this Section 15.01(b)(iv) have been satisfied; (3) an opinion of counsel for Borrower in form and substance reasonably satisfactory to Lender stating, among other things, that (x) Lender has a perfected security interest in the Defeasance Deposit (if applicable) and a first priority perfected security interest in the Federal Obligations purchased by Lender Xxxxxx on behalf of Borrower or by Borrower, as applicableXxxxxxxx, (y) the contemplated defeasance will not result in any deemed exchange pursuant to Section 1001 of the Code of the Note and will not adversely affect the Note’s 's or, if applicable, the undefeased Note’s 's status as indebtedness for Federal income tax purposes and (z) any trust formed as a “"real estate mortgage investment conduit” " within the meaning of Section 860D of the Code (“"REMIC”") in connection with a Securitization will not fail to maintain its status as a REMIC as a result of such defeasance; (4) in the event that only a portion of the Loan is being defeased, Borrower shall execute and deliver all necessary documents to split the Note into two substitute notes, one having a principal balance equal to the defeased portion of the Note (the “"Defeased Note”") and one note having a principal balance equal to the undefeased portion of the Note (the “"Undefeased Note”"), the amortization schedule for which notes shall be calculated, in the case of a Defeased Note, or recalculated, in the case of an Undefeased Note, to fully amortize the respective principal balances of each on the same a twenty-five (25) year schedule as the Note (including, without limitation, the payment of the Principal Amount due commencing on the Maturity Closing Date)) utilizing level monthly payments of principal and interest; (5) a certificate, in form and substance reasonably satisfactory to Lender from a nationally recognized Independent certified public accountant confirming that the requirements of this Section 15.01(b) have been satisfied; and (6) such other certificates, documents, opinions or instruments as Lender may reasonably request. Borrower reserves the right to purchase Federal Obligations with and in lieu of making the Defeasance Deposit which provide Scheduled Defeasance Payments, and, if Borrower shall deliver the Defeasance Deposit to Lender, hereby irrevocably appoints Lender as its agent and attorney-in-fact, coupled with an interest (which appointment will not be exercised if Borrower notifies Lender in writing in the notice provided for in Section 15.01(b)(i) that Borrower will purchase the Federal Obligations)interest, for the purpose of using the Defeasance Deposit to purchase Federal Obligations which provide Scheduled Defeasance Payments, and Lender shall, upon receipt of the Defeasance Deposit, purchase such Federal Obligations on behalf of Borrower. Borrower, pursuant to the Security Agreement or other appropriate document, shall authorize and direct that the payments received from the Federal Obligations shall be made directly to Lender and applied to satisfy the obligations of Borrower under the Defeased Note. The Defeased Note and the Undefeased Note shall have identical terms as the Note, except for the principal balance. A Defeased Note cannot be the subject of a further defeasance.
(v) The Rating Agencies shall have confirmed in writing that any rating issued by the Rating Agencies in connection with the Securitization will not, as a result of the proposed defeasance, be downgraded, downgraded from the then current ratings thereof, qualified or withdrawn.
(vi) If In the event of a defeasance of the Loan is to be defeased and Borrower is requesting a release of the Property in connection with such defeasancewhole, such defeasance shall be to facilitate the disposition or refinancing of the Property or but not in connection with any other customary transaction within the meaning of Treas. Reg. 1.860G-(2)(a)(8)(iii).
(vii) If part, if Borrower shall continue to own any assets other than the Defeasance Deposit, Borrower shall establish or designate a special-purpose bankruptcy-remote successor entity reasonably acceptable to Lender (the “"Successor Borrower”"), with respect to which a substantive nonconsolidation opinion satisfactory in form and substance reasonably satisfactory to Lender has been delivered to Lender and Borrower shall transfer and assign to the Successor Borrower all obligations, rights and duties under the Note and the Security Agreement, together with the pledged Defeasance Deposit. The Successor Borrower shall assume the obligations of Borrower under the Note and the Security Agreement and Borrower shall be relieved of its obligations hereunder and thereunder. Borrower shall pay Ten and No/100 Dollars ($10.00) to the Successor Borrower as consideration for assuming such Borrower obligations.
(viiivii) In the event that Borrower desires to allocate all or any portion of a Defeasance Deposit to reduce the Allocated Loan is defeased in full in accordance with the terms hereofAmount of a specific Cross-collateralized Property, Lender Borrower shall release all reserves, escrows and guaranties relating to the Loan to Borrower and have included in the event the Loan is defeased in part in connection with notice required to be given pursuant to clause (i) of this Section 15.01(b) a Release in accordance with the terms hereof, Lender shall release statement designating to which Cross-collateralized Property Borrower all reserves and escrows relating wishes to the Property subject to the Releasehave such Defeasance Deposit allocated.
(c) At any time on or subsequent to the Payment Date occurring in February, 2017 which is six (6) months prior to the “Lockout Expiration Maturity Date”), Borrower may prepay the Loan, in whole, but not in part, as of the last day of an Interest Accrual Period, it being acknowledged that Borrower may prepay the Loan on a day other than the last day of an Interest Accrual Period, provided that Borrower pays all interest which would otherwise be due to Lender through the end of such Interest Accrual Period, in accordance with the following provisions:
(i) Lender shall have received from Borrower Borrower, not less than thirty (30) days days', nor more than ninety (90) days', prior written notice specifying the date proposed for such prepayment and the amount which is to be prepaid (which notice proposed date shall be revocable by Borrower up to two (2) times during the term of the Loan by giving Lender not less than one (1) Business Day prior written notice of such revocation, provided that Borrower shall remain obligated to pay Lender’s costs and expenses including, without limitation, breakage costs incurred by Lender in connection with such revocation)a Payment Date.
(ii) Borrower shall also pay to Lender all interest due through and including the last day of the Interest Accrual Period ending on the day prior to the Payment Date in which such prepayment is being made, together with any and all other amounts due and owing pursuant to the terms of the Note, this Security Instrument or the other Loan Documents.
(iii) Any partial prepayment shall be in a minimum amount not less than $25,000 and shall be in whole multiples of $1,000 in excess thereof.
(iv) No Event of Default shall have occurred and be continuing.
(viv) Any partial prepayment of the Principal Amount, including, without limitation, Unscheduled Payments, shall be applied to the installments of principal last due hereunder and shall not release or relieve Borrower or any other Cross-collateralized Borrower from the obligation to pay the regularly scheduled installments of principal and interest becoming due under the Note.
Appears in 1 contract
Defeasance; Prepayment. (a) Except as set forth in this Section 15.01, no prepayment or defeasance of the Debt may be made by or on behalf of Borrower Grantor (except as required by Beneficiary pursuant to the terms of this Deed of Trust) in whole or in part.
(b) Borrower Grantor may defease the Loan at any time subsequent to the earlier to occur of (x) the second (2nd) anniversary of a Securitization or (y) the third (3rd) anniversary of the date hereof and prior to the calendar month immediately preceding the Maturity Optional Prepayment Date, in whole or, from time to time, in part, as of the last day of an Interest Accrual Period, it being acknowledged that Borrower may defease the Loan on a day other than the last day of an Interest Accrual Period, provided that Borrower pays all interest which would otherwise be due to Lender through the end of such Interest Accrual Period, in accordance with the following provisions:
(i) Lender Beneficiary shall have received from BorrowerGrantor, not less than thirty (30) days’', nor more than ninety (90) days’', prior written notice specifying the date proposed for such defeasance and the amount which is to be defeased, which proposed date shall be as of a Payment Date (which notice shall be revocable by Borrower three (3) times during the term of the Loan by giving Lender not less than two (2) Business Days prior written notice of such revocation, provided that Borrower shall remain obligated to pay Lender’s costs and expenses including, without limitation, breakage costs incurred by Lender in connection with such revocation)Date.
(ii) Borrower Grantor shall also pay to Lender Beneficiary all interest due through and including the last day of the Interest Accrual Period ending on the day prior to the Payment Date in which such defeasance is being made, together with any and all other amounts due and owing pursuant to the terms of the Note, this Security Instrument Deed of Trust or the other Loan Documents, including, without limitation, any costs incurred in connection with a defeasance.
(iii) No Event of Default shall have occurred and be continuing.. 116
(iv) Borrower Grantor shall (A) either pay the Defeasance Deposit, or if Borrower shall elect, purchase the Federal Obligations Deposit and (B) deliver to Lender Beneficiary (1) a security agreement, in form and substance reasonably satisfactory to LenderBeneficiary, creating a first priority lien on the Defeasance Deposit (if applicable) and the Federal Obligations purchased by or on behalf of Borrower Grantor with the Defeasance Deposit in accordance with the terms of this Section 15.01(b)(iv) (the “"Security Agreement”"); (2) deliver to Beneficiary an Officer’s 's Certificate certifying that the requirements set forth in this Section 15.01(b)(iv) have been satisfied; (3) deliver to Beneficiary an opinion of counsel for Borrower Grantor in form and substance reasonably satisfactory to Lender Beneficiary stating, among other things, that (x) Lender Beneficiary has a perfected security interest in the Defeasance Deposit (if applicable) and a first priority perfected security interest in the Federal Obligations purchased by Lender Beneficiary on behalf of Borrower or by Borrower, as applicable, (y) the contemplated defeasance will not result in any deemed exchange pursuant to Section 1001 of the Code of the Note and will not adversely affect the Note’s or, if applicable, the undefeased Note’s status as indebtedness for Federal income tax purposes and (z) any trust formed as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code (“REMIC”) in connection with a Securitization will not fail to maintain its status as a REMIC as a result of such defeasanceGrantor; (4) in the event that only a portion of the Loan is being defeased, Borrower Grantor shall execute and deliver all necessary documents to split the Note into two substitute notes, one having a principal balance equal to the defeased portion of the Note (the “"Defeased Note”") and one note having a principal balance equal to the undefeased portion of the Note (the “"Undefeased Note”"), the amortization schedule for which notes shall be calculated, in the case of a Defeased Note, or recalculated, in the case of an Undefeased Note, to fully amortize the respective principal balances of each on the same a thirty (30) year schedule as the Note (including, without limitation, the payment of the Principal Amount due commencing on the Maturity Closing Date)) utilizing level monthly payments of principal and interest and an assumed rate of interest equal to 7.782%; and (5) a certificate, in form and substance reasonably satisfactory deliver to Lender from a nationally recognized Independent certified public accountant confirming that the requirements of this Section 15.01(b) have been satisfied; and (6) Beneficiary such other certificates, documents, opinions documents or instruments as Lender Beneficiary may reasonably request. Borrower reserves the right to purchase Federal Obligations with and in lieu of making the Defeasance Deposit which provide Scheduled Defeasance Payments, and, if Borrower shall deliver the Defeasance Deposit to Lender, Grantor hereby irrevocably appoints Lender Beneficiary as its agent and attorney-in-fact, coupled with an interest (which appointment will not be exercised if Borrower notifies Lender in writing in the notice provided for in Section 15.01(b)(i) that Borrower will purchase the Federal Obligations)interest, for the purpose of using the Defeasance Deposit to purchase Federal Obligations which provide Scheduled Defeasance Payments, and Lender Beneficiary shall, upon receipt of the Defeasance Deposit, purchase such Federal Obligations on behalf of BorrowerGrantor. BorrowerGrantor, pursuant to the Security Agreement or other appropriate document, shall authorize and direct that the payments received from the Federal Obligations shall be made directly to Lender Beneficiary and applied to satisfy the obligations of Borrower Grantor under the Defeased Note. The Defeased Note and the Undefeased Note shall have identical terms as the Note, except for the principal balance. A Defeased Note cannot be the subject of a further defeasance.
(v) The Rating Agencies shall have confirmed in writing that any rating issued by the Rating Agencies in connection with the Securitization will not, as a result of the proposed defeasance, be downgraded, from the then current ratings thereof, qualified or withdrawn.
(vi) If the Loan is to be defeased and Borrower is requesting a release of the Property in connection with such defeasance, such defeasance shall be to facilitate the disposition or refinancing of the Property or in connection with any other customary transaction within the meaning of Treas. Reg. 1.860G-(2)(a)(8)(iii).
(vii) If Borrower shall continue to own any assets other than the Defeasance Deposit, Borrower shall establish or designate a special-purpose bankruptcy-remote successor entity reasonably acceptable to Lender (the “Successor Borrower”), with respect to which a substantive nonconsolidation opinion satisfactory in form and substance reasonably satisfactory to Lender has been delivered to Lender and Borrower shall transfer and assign to the Successor Borrower all obligations, rights and duties under the Note and the Security Agreement, together with the pledged Defeasance Deposit. The Successor Borrower shall assume the obligations of Borrower under the Note and the Security Agreement and Borrower shall be relieved of its obligations hereunder and thereunder. Borrower shall pay Ten and No/100 Dollars ($10.00) to the Successor Borrower as consideration for assuming such Borrower obligations.
(viii) In the event that Grantor desires to allocate all or any portion of a Defeasance Deposit to reduce the Allocated Loan is defeased in full in accordance with the terms hereofAmount of a specific Cross-collateralized Property, Lender Grantor shall release all reserves, escrows and guaranties relating to the Loan to Borrower and have included in the event the Loan is defeased in part in connection with a Release in accordance with the terms hereof, Lender shall release notice required to Borrower all reserves and escrows relating be given pursuant to the Property subject to the Release.
(c) At any time subsequent to the Payment Date occurring in February, 2017 (the “Lockout Expiration Date”), Borrower may prepay the Loan, in whole, but not in part, as of the last day of an Interest Accrual Period, it being acknowledged that Borrower may prepay the Loan on a day other than the last day of an Interest Accrual Period, provided that Borrower pays all interest which would otherwise be due to Lender through the end of such Interest Accrual Period, in accordance with the following provisions:
clause (i) Lender shall of this Section 15.01(b) a statement designating to which Cross-collateralized Property Grantor wishes to have received from Borrower not less than thirty (30) days , nor more than ninety (90) days, prior written notice specifying the date proposed for such prepayment and the amount which is to be prepaid (which notice shall be revocable by Borrower up to two (2) times during the term of the Loan by giving Lender not less than one (1) Business Day prior written notice of such revocation, provided that Borrower shall remain obligated to pay Lender’s costs and expenses including, without limitation, breakage costs incurred by Lender in connection with such revocation)Defeasance Deposit allocated.
(ii) Borrower shall also pay to Lender all interest due through and including the last day of the Interest Accrual Period in which such prepayment is being made, together with any and all other amounts due and owing pursuant to the terms of the Note, this Security Instrument or the other Loan Documents.
(iii) Any partial prepayment shall be in a minimum amount not less than $25,000 and shall be in whole multiples of $1,000 in excess thereof.
(iv) No Event of Default shall have occurred and be continuing.
(v) Any partial prepayment of the Principal Amount, including, without limitation, Unscheduled Payments, shall be applied to the installments of principal last due hereunder and shall not release or relieve Borrower from the obligation to pay the regularly scheduled installments of principal and interest becoming due under the Note.
Appears in 1 contract
Samples: Deed of Trust, Security Agreement, Assignment of Rents and Fixture Filing (Prime Retail Inc)
Defeasance; Prepayment. (a) Except as set forth in this Section 15.01, no prepayment or defeasance of the Debt may be made by or on behalf of Borrower in whole or in part.
(b) Borrower may defease the Loan at any time subsequent to the earlier to occur of (x) the second (2nd) anniversary of a Securitization or (y) the third (3rd) anniversary of the date hereof and prior to the calendar month immediately preceding the Maturity Date, in whole or, from time to time, in part, as of the last day of an Interest Accrual Period, it being acknowledged that Borrower may defease the Loan on a day other than the last day of an Interest Accrual Period, provided that Borrower pays all interest which would otherwise be due to Lender through the end of such Interest Accrual Period, in accordance with the following provisions:
(i) Lender shall have received from Borrower, not less than thirty (30) days’', nor more than ninety (90) days’', prior written notice specifying the date proposed for such defeasance and the amount which is to be defeased, which proposed date shall be as of a Payment Date (which notice shall be revocable by Borrower three (3) times during the term of the Loan by giving Lender not less than two (2) Business Days prior written notice of such revocation, provided that Borrower shall remain obligated to pay Lender’s costs and expenses including, without limitation, breakage costs incurred by Lender in connection with such revocation)Date.
(ii) Borrower shall also pay to Lender all interest due through and including the last day of the Interest Accrual Period ending on the day prior to the Payment Date in which such defeasance is being made, together with any and all other amounts due and owing pursuant to the terms of the Note, this Security Instrument or the other Loan Documents, including, without limitation, any costs incurred in connection with a defeasance.
(iii) No Event of Default shall have occurred and be continuing.
(iv) Borrower shall (A) either pay the Defeasance Deposit, or if Borrower shall elect, purchase the Federal Obligations Deposit and (B) deliver to Lender (1) a security agreement, in form and substance reasonably satisfactory to Lender, creating a first priority lien on the Defeasance Deposit (if applicable) and the Federal Obligations purchased by or on behalf of Borrower with the Defeasance Deposit in accordance with the terms of this Section 15.01(b)(iv) (the “"Security Agreement”"); (2) an Officer’s 's Certificate certifying that the requirements set forth in this Section 15.01(b)(iv) have been satisfied; (3) an opinion of counsel for Borrower in form and substance reasonably satisfactory to Lender stating, among other things, that (x) Lender has a perfected security interest in the Defeasance Deposit (if applicable) and a first priority perfected security interest in the Federal Obligations purchased by Lender on behalf of Borrower or by Borrower, as applicable, (y) the contemplated defeasance will not result in any deemed exchange pursuant to Section 1001 of the Code of the Note and will not adversely affect the Note’s 's or, if applicable, the undefeased Note’s 's status as indebtedness for Federal income tax purposes and (z) any trust formed as a “"real estate mortgage investment conduit” " within the meaning of Section 860D of the Code (“"REMIC”") in connection with a Securitization will not fail to maintain its status as a REMIC as a result of such defeasance; (4) in the event that only a portion of the Loan is being defeased, Borrower shall execute and deliver all necessary documents to split the Note into two substitute notes, one having a principal balance equal to the defeased portion of the Note (the “"Defeased Note”") and one note having a principal balance equal to the undefeased portion of the Note (the “"Undefeased Note”"), the amortization schedule for which notes shall be calculated, in the case of a Defeased Note, or recalculated, in the case of an Undefeased Note, to amortize provide for interest only payments through the respective principal balances maturity date of each on the same schedule as the Note (including, without limitation, the payment of the Principal Amount due on the Maturity Date)such notes; (5) a certificate, in form and substance reasonably satisfactory to Lender from a nationally recognized Independent certified public accountant confirming that the requirements of this Section 15.01(b) have been satisfied; and (6) such other certificates, documents, opinions or instruments as Lender may reasonably request. Borrower reserves the right to purchase Federal Obligations with and in lieu of making the Defeasance Deposit which provide Scheduled Defeasance Payments, and, if Borrower shall deliver the Defeasance Deposit to Lender, and appoints Lender as its agent and attorney-in-fact, coupled with an interest (which appointment will not be exercised if Borrower notifies Lender in writing in the notice provided for in Section 15.01(b)(i) that Borrower will purchase be purchasing the Federal Obligations), for the purpose of using the Defeasance Deposit to purchase Federal Obligations which provide Scheduled Defeasance Payments, and Lender shall, upon receipt of the Defeasance Deposit, purchase such Federal Obligations on behalf of Borrower. Borrower, pursuant to the Security Agreement or other appropriate document, shall authorize and direct that the payments received from the Federal Obligations shall be made directly to Lender and applied to satisfy the obligations of Borrower under the Defeased Note. The Defeased Note and the Undefeased Note shall have identical terms as the Note, except for the principal balance. A Defeased Note cannot be the subject of a further defeasance.
(v) The Rating Agencies shall have confirmed in writing that any rating issued by the Rating Agencies in connection with the Securitization will not, as a result of the proposed defeasance, be downgraded, from the then current ratings thereof, qualified or withdrawn.
(vi) If the Loan is to be defeased and Borrower is requesting a release of the Property in connection with such defeasance, such defeasance shall be to facilitate the disposition or refinancing of the Property or in connection with any other customary transaction within the meaning of Treas. Reg. 1.860G-(2)(a)(8)(iii).
(vii) If In the event of a defeasance of the Loan in whole, but not in part, if Borrower shall continue to own any assets other than the Defeasance Deposit, Borrower shall establish or designate a special-purpose bankruptcy-remote successor entity reasonably acceptable to Lender (the “"Successor Borrower”"), with respect to which a substantive nonconsolidation opinion satisfactory in form and substance reasonably satisfactory to Lender has been delivered to Lender and Borrower shall transfer and assign to the Successor Borrower all obligations, rights and duties under the Note and the Security Agreement, together with the pledged Defeasance Deposit. The Successor Borrower shall assume the obligations of Borrower under the Note and the Security Agreement and Borrower shall be relieved of its obligations hereunder and thereunder. Borrower shall pay Ten and No/100 Dollars ($10.00) to the Successor Borrower as consideration for assuming such Borrower obligations.
(viii) In the event the Loan is defeased in full in accordance with the terms hereof, Lender shall release all reserves, escrows and guaranties relating to the Loan to Borrower.
(c) At any time prior to the earlier of the third (3rd) anniversary of the date hereof and the second (2nd) anniversary of the last Securitization involving any portion of the Loan, Borrower and in the event may prepay the Loan in whole or, if such prepayment is defeased made in part connection with a release of an Out-Parcel made in accordance with Section 15.03 hereof or in connection with a Release in accordance with the terms Section 15.02 hereof, Lender shall release to Borrower all reserves and escrows relating to the Property subject to the Release.
(c) At in part. Additionally, at any time on or subsequent to the Payment Date occurring in FebruaryDecember, 2017 2010 (the “"Lockout Expiration Date”"), Borrower may prepay the Loan, in whole, but not in part, . Any prepayment of the Loan permitted under this paragraph (c) shall be made as of the last day of an Interest Accrual Period, it being acknowledged that Borrower may prepay the Loan on a day other than the last day of an Interest Accrual Period, provided that Borrower pays all interest which would otherwise be due to Lender through the end of such Interest Accrual Period, Period in accordance with the following provisions:
(i) Lender shall have received from Borrower Borrower, not less than thirty (30) days days', nor more than ninety (90) days', prior written notice specifying the date proposed for such prepayment and the amount which is to be prepaid (which notice shall be revocable by Borrower up to two (2) times during the term of the Loan by giving Lender not less than one (1) Business Day prior written notice of such revocation, provided that Borrower shall remain obligated to pay Lender’s costs and expenses including, without limitation, breakage costs incurred by Lender in connection with such revocation)prepaid.
(ii) Borrower shall also pay to Lender all interest due through and including the last day of the Interest Accrual Period in which such prepayment is being made, together with any and all other amounts due and owing pursuant to the terms of the Note, this Security Instrument or the other Loan Documents.
(iii) Any partial prepayment shall be in a minimum amount not less than $25,000 and shall be in whole multiples of $1,000 in excess thereof.
(iv) No partial prepayment during any period in which an Event of Default shall have occurred and be continuing.
(v) Any partial prepayment of the Principal Amount, including, without limitation, Unscheduled Payments, shall be applied to the installments of principal last due hereunder and shall not release or relieve Borrower from the obligation to pay the regularly scheduled installments of principal and interest becoming due under the Note.
(vi) Borrower shall pay to Lender, together with any such prepayment permitted under this paragraph (c) made prior to the Lockout Expiration Date and all other amounts due in connection therewith, the Yield Maintenance Premium. For the purposes hereof, the term "Yield Maintenance Premium" shall mean the premium which shall be the product of (A) a fraction, the numerator of which is the positive excess, if any, of (1) the present value of all future payments of principal and interest due pursuant to the Note, including the principal amount due at maturity, to be made on the Note before the prepayment in question, discounted at an interest rate per annum equal to the average yield for "This Week" as reported by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (the "Treasury Constant Maturity Yield Index") published during the second full week preceding the date on which such premium is payable for instruments having a maturity coterminous with the Lockout Expiration Date, over (2) the Principal Amount evidenced by the Note immediately before such prepayment, and the denominator of which is the Principal Amount evidenced by the Note immediately prior to the prepayment, and (B) the Principal Amount evidenced by the Note being prepaid; provided, however, that if there is no Treasury Constant Maturity Yield Index for instruments having a maturity coterminous with the Lockout Expiration Date, then the index referred to in (1) above shall be equal to the weighted average yield to maturity of the Treasury Constant Maturity Yield Indices with maturities next longer and shorter than such remaining average life to maturity, calculated by averaging (and rounding upward to the nearest whole multiple of 1/100 of 1% per annum, if the average is not such a multiple) the yields of the relevant Treasury Constant Maturity Yield Indices (rounded, if necessary, to the nearest 1/100 of 1% with any figure of 1/200 of 1% or above rounded upward).
Appears in 1 contract
Samples: Mortgage, Security Agreement, Assignment of Rents and Fixture Filing (CNL Hotels & Resorts, Inc.)
Defeasance; Prepayment. (a) Except as set forth in this Section 15.01, no prepayment or defeasance of the Debt may be made by or on behalf of Borrower in whole or in part.
(b) Borrower may defease the Loan at any time subsequent to the earlier to occur of (x) the second (2nd) anniversary of a Securitization or (y) the third (3rd) anniversary of the date hereof and prior to the calendar month immediately preceding three (3) months prior to the Maturity Date, in whole or, from time to time, in part, as of the last day of an Interest Accrual Period, it being acknowledged that Borrower may defease the Loan on a day other than the last day of an Interest Accrual Period, provided that Borrower pays all interest which would otherwise be due to Lender through the end of such Interest Accrual Period, in accordance with the following provisions:
(i) Lender shall have received from Borrower, not less than thirty (30) days’', nor more than ninety (90) days’', prior written notice specifying the date proposed for such defeasance and the amount which is to be defeased, which proposed date shall be as of a Payment Date (which notice shall be revocable by Borrower three (3) times during the term of the Loan by giving Lender not less than two (2) Business Days prior written notice of such revocation, provided that Borrower shall remain obligated to pay Lender’s costs and expenses including, without limitation, breakage costs incurred by Lender in connection with such revocation)Date.
(ii) Borrower shall also pay to Lender all interest due through and including the last day of the Interest Accrual Period ending on the day prior to the Payment Date in which such defeasance is being made, together with any and all other amounts due and owing pursuant to the terms of the Note, this Security Instrument or the other Loan Documents, including, without limitation, any costs incurred in connection with a defeasance.
(iii) No Event of Default shall have occurred and be continuing.
(iv) Borrower shall (A) either pay the Defeasance Deposit, or if Borrower shall elect, purchase the Federal Obligations Deposit and (B) deliver to Lender (1) a security agreement, in form and substance reasonably satisfactory to Lender, creating a first priority lien on the Defeasance Deposit (if applicable) and the Federal Obligations purchased by or on behalf of Borrower with the Defeasance Deposit in accordance with the terms of this Section 15.01(b)(iv) (the “"Security Agreement”"); (2) an Officer’s 's Certificate certifying that the requirements set forth in this Section 15.01(b)(iv) have been satisfied; (3) an opinion of counsel for Borrower in form and substance reasonably satisfactory to Lender stating, among other things, that (x) Lender has a perfected security interest in the Defeasance Deposit (if applicable) and a first priority perfected security interest in the Federal Obligations purchased by Lender on behalf of Borrower or by Borrower, as applicableXxxxxxxx, (y) the contemplated defeasance will not result in any deemed exchange pursuant to Section 1001 of the Code of the Note and will not adversely affect the Note’s 's or, if applicable, the undefeased Note’s 's status as indebtedness for Federal income tax purposes and (z) any trust formed as a “"real estate mortgage investment conduit” " within the meaning of Section 860D of the Code (“"REMIC”") in connection with a Securitization will not fail to maintain its status as a REMIC as a result of such defeasance; (4) in the event that only a portion of the Loan is being defeased, Borrower shall execute and deliver all necessary documents to split the Note into two substitute notes, one having a principal balance equal to the defeased portion of the Note (the “"Defeased Note”") and one note having a principal balance equal to the undefeased portion of the Note (the “"Undefeased Note”"), the amortization schedule for which notes shall be calculated, in the case of a Defeased Note, or recalculated, in the case of an Undefeased Note, to fully amortize the respective principal balances of each on the same a twenty-five (25) year schedule as the Note (including, without limitation, the payment of the Principal Amount due commencing on the Maturity Closing Date)) utilizing level monthly payments of principal and interest; (5) a certificate, in form and substance reasonably satisfactory to Lender from a nationally recognized Independent certified public accountant confirming that the requirements of this Section 15.01(b) have been satisfied; and (6) such other certificates, documents, opinions or instruments as Lender may reasonably request. Borrower reserves the right to purchase Federal Obligations with and in lieu of making the Defeasance Deposit which provide Scheduled Defeasance Payments, and, if Borrower shall deliver the Defeasance Deposit to Lender, hereby irrevocably appoints Lender as its agent and attorney-in-fact, coupled with an interest (which appointment will not be exercised if Borrower notifies Lender in writing in the notice provided for in Section 15.01(b)(i) that Borrower will purchase the Federal Obligations)interest, for the purpose of using the Defeasance Deposit to purchase Federal Obligations which provide Scheduled Defeasance Payments, and Lender shall, upon receipt of the Defeasance Deposit, purchase such Federal Obligations on behalf of Borrower. Borrower, pursuant to the Security Agreement or other appropriate document, shall authorize and direct that the payments received from the Federal Obligations shall be made directly to Lender and applied to satisfy the obligations of Borrower under the Defeased Note. The Defeased Note and the Undefeased Note shall have identical terms as the Note, except for the principal balance. A Defeased Note cannot be the subject of a further defeasance.
(v) The Rating Agencies shall have confirmed in writing that any rating issued by the Rating Agencies in connection with the Securitization will not, as a result of the proposed defeasance, be downgraded, downgraded from the then current ratings thereof, qualified or withdrawn.
(vi) If In the event of a defeasance of the Loan is to be defeased and Borrower is requesting a release of the Property in connection with such defeasancewhole, such defeasance shall be to facilitate the disposition or refinancing of the Property or but not in connection with any other customary transaction within the meaning of Treas. Reg. 1.860G-(2)(a)(8)(iii).
(vii) If part, if Borrower shall continue to own any assets other than the Defeasance Deposit, Borrower shall establish or designate a special-purpose bankruptcy-remote successor entity reasonably acceptable to Lender (the “"Successor Borrower”"), with respect to which a substantive nonconsolidation opinion satisfactory in form and substance reasonably satisfactory to Lender has been delivered to Lender and Borrower shall transfer and assign to the Successor Borrower all obligations, rights and duties under the Note and the Security Agreement, together with the pledged Defeasance Deposit. The Successor Borrower shall assume the obligations of Borrower under the Note and the Security Agreement and Borrower shall be relieved of its obligations hereunder and thereunder. Borrower shall pay Ten and No/100 Dollars ($10.00) to the Successor Borrower as consideration for assuming such Borrower obligations.
(viii) In the event the Loan is defeased in full in accordance with the terms hereof, Lender shall release all reserves, escrows and guaranties relating to the Loan to Borrower and in the event the Loan is defeased in part in connection with a Release in accordance with the terms hereof, Lender shall release to Borrower all reserves and escrows relating to the Property subject to the Release.
(c) At any time subsequent to the Payment Date occurring in February, 2017 (the “Lockout Expiration Date”), Borrower may prepay the Loan, in whole, but not in part, as of the last day of an Interest Accrual Period, it being acknowledged that Borrower may prepay the Loan on a day other than the last day of an Interest Accrual Period, provided that Borrower pays all interest which would otherwise be due to Lender through the end of such Interest Accrual Period, in accordance with the following provisions:
(i) Lender shall have received from Borrower not less than thirty (30) days , nor more than ninety (90) days, prior written notice specifying the date proposed for such prepayment and the amount which is to be prepaid (which notice shall be revocable by Borrower up to two (2) times during the term of the Loan by giving Lender not less than one (1) Business Day prior written notice of such revocation, provided that Borrower shall remain obligated to pay Lender’s costs and expenses including, without limitation, breakage costs incurred by Lender in connection with such revocation).
(ii) Borrower shall also pay to Lender all interest due through and including the last day of the Interest Accrual Period in which such prepayment is being made, together with any and all other amounts due and owing pursuant to the terms of the Note, this Security Instrument or the other Loan Documents.
(iii) Any partial prepayment shall be in a minimum amount not less than $25,000 and shall be in whole multiples of $1,000 in excess thereof.
(iv) No Event of Default shall have occurred and be continuing.
(v) Any partial prepayment of the Principal Amount, including, without limitation, Unscheduled Payments, shall be applied to the installments of principal last due hereunder and shall not release or relieve Borrower from the obligation to pay the regularly scheduled installments of principal and interest becoming due under the Note.and
Appears in 1 contract
Defeasance; Prepayment. (a) Except as set forth in this Section 15.01, no prepayment or defeasance of the Debt may be made by or on behalf of Borrower Grantor in whole or in part.
(b) Borrower Grantor may defease the Loan at any time subsequent to the earlier to occur of (x) the second (2nd) anniversary of a the last Securitization involving any portion of the Loan or (y) the third (3rd) anniversary of the date hereof and prior to the calendar month immediately preceding the Maturity Date, in whole or, from time to time, in part, as of the last day of an Interest Accrual Period, it being acknowledged that Borrower may defease the Loan on a day other than the last day of an Interest Accrual Period, provided that Borrower pays all interest which would otherwise be due to Lender through the end of such Interest Accrual Period, in accordance with the following provisions:
(i) Lender shall have received from BorrowerGrantor, not less than thirty (30) days’, nor more than ninety (90) days’, prior written notice specifying the date proposed for such defeasance and the amount which is to be defeased, which proposed date shall be as of a Payment Date (which notice shall be revocable by Borrower three (3) times during the term of the Loan by giving Lender not less than two (2) Business Days prior written notice of such revocation, provided that Borrower shall remain obligated to pay Lender’s costs and expenses including, without limitation, breakage costs incurred by Lender in connection with such revocation)Date.
(ii) Borrower Grantor shall also pay to Lender all interest due through and including the last day of the Interest Accrual Period ending on the day prior to the Payment Date in which such defeasance is being made, together with any and all other amounts due and owing pursuant to the terms of the Note, this Security Instrument or the other Loan Documents, including, without limitation, any costs incurred in connection with a defeasance.
(iii) No Event of Default shall have occurred and be continuing.
(iv) Borrower Grantor shall (A) either pay the Defeasance Deposit, or if Borrower shall elect, purchase the Federal Obligations Deposit and (B) deliver to Lender (1) a security agreement, in form and substance reasonably satisfactory to Lender, creating a first priority lien on the Defeasance Deposit (if applicable) and the Federal Obligations purchased by or on behalf of Borrower Grantor with the Defeasance Deposit in accordance with the terms of this Section 15.01(b)(iv) (the “Security Agreement”); (2) an Officer’s Certificate certifying that the requirements set forth in this Section 15.01(b)(iv) have been satisfied; (3) an opinion of counsel for Borrower Grantor in form and substance reasonably satisfactory to Lender stating, among other things, that (x) Lender has a perfected security interest in the Defeasance Deposit (if applicable) and a first priority perfected security interest in the Federal Obligations purchased by Lender on behalf of Borrower or by Borrower, as applicableGrantor, (y) the contemplated defeasance will not result in any deemed exchange pursuant to Section 1001 of the Code of the Note and will not adversely affect the Note’s or, if applicable, the undefeased Note’s status as indebtedness for Federal income tax purposes and (z) any trust formed as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code (“REMIC”) in connection with a Securitization will not fail to maintain its status as a REMIC as a result of such defeasance; (4) in the event that only a portion of the Loan is being defeased, Borrower Grantor shall execute and deliver all necessary documents to split the Note into two substitute notes, one having a principal balance equal to the defeased portion of the Note (the “Defeased Note”) and one note having a principal balance equal to the undefeased portion of the Note (the “Undefeased Note”), the amortization schedule for which notes shall be calculated, in the case of a Defeased Note, or recalculated, in the case of an Undefeased Note, to amortize the respective principal balances of each on the same schedule as the Note (including, without limitation, the payment of the Principal Amount due on the Maturity Date); (5) a certificate, in form and substance reasonably satisfactory to Lender from a nationally recognized Independent certified public accountant confirming that the requirements of this Section 15.01(b) have been satisfied; and (6) such other certificates, documents, opinions or instruments as Lender may reasonably request. Borrower reserves the right to purchase Federal Obligations with and in lieu of making the Defeasance Deposit which provide Scheduled Defeasance Payments, and, if Borrower shall deliver the Defeasance Deposit to Lender, Grantor hereby irrevocably appoints Lender as its agent and attorney-in-fact, coupled with an interest (which appointment will not be exercised if Borrower notifies Lender in writing in the notice provided for in Section 15.01(b)(i) that Borrower will purchase the Federal Obligations)interest, for the purpose of using the Defeasance Deposit to purchase Federal Obligations which provide Scheduled Defeasance Payments, and Lender shall, upon receipt of the Defeasance Deposit, purchase such Federal Obligations on behalf of BorrowerGrantor. BorrowerGrantor, pursuant to the Security Agreement or other appropriate document, shall authorize and direct that the payments received from the Federal Obligations shall be made directly to Lender and applied to satisfy the obligations of Borrower Grantor under the Defeased Note. The Defeased Note and the Undefeased Note shall have identical terms as the Note, except for the principal balance. A Defeased Note cannot be the subject of a further defeasance.
(v) The Rating Agencies shall have confirmed in writing that any rating issued by the Rating Agencies in connection with the Securitization will not, as a result of the proposed defeasance, be downgraded, from the then current ratings thereof, qualified or withdrawn.
(vi) If the Loan is to be defeased and Borrower Grantor is requesting a release of the Property in connection with such defeasance, such defeasance shall be to facilitate the disposition or refinancing of the Property or in connection with any other customary transaction within the meaning of Treas. Reg. 1.860G-(2)(a)(8)(iii).
(vii) If Borrower In the event of a defeasance of the Loan in whole, but not in part, if Grantor shall continue to own any assets other than the Defeasance Deposit, Borrower Grantor shall establish or designate a special-purpose bankruptcy-remote successor entity reasonably acceptable to Lender (the “Successor BorrowerGrantor”), with respect to which a substantive nonconsolidation opinion satisfactory in form and substance reasonably satisfactory to Lender has been delivered to Lender and Borrower Grantor shall transfer and assign to the Successor Borrower Grantor all obligations, rights and duties under the Note and the Security Agreement, together with the pledged Defeasance Deposit. The Successor Borrower Grantor shall assume the obligations of Borrower Grantor under the Note and the Security Agreement and Borrower Grantor shall be relieved of its obligations hereunder and thereunder. Borrower Grantor shall pay Ten and No/100 Dollars ($10.00) to the Successor Borrower Grantor as consideration for assuming such Borrower Grantor obligations.
(viii) In the event the Loan is defeased in full in accordance with the terms hereof, Lender shall release all reserves, escrows and guaranties relating to the Loan to Borrower and in the event the Loan is defeased in part in connection with a Release in accordance with the terms hereof, Lender shall release to Borrower all reserves and escrows relating to the Property subject to the ReleaseGrantor.
(c) At any time subsequent to the Payment Date occurring in February, 2017 July 2007 (the “Lockout Expiration Date”), Borrower Grantor may prepay the Loan, in whole, but not in part, as of the last day of an Interest Accrual Period, it being acknowledged that Borrower may prepay the Loan on a day other than the last day of an Interest Accrual Period, provided that Borrower pays all interest which would otherwise be due to Lender through the end of such Interest Accrual Period, in accordance with the following provisions:
(i) Lender shall have received from Borrower Grantor, not less than thirty (30) days days’, nor more than ninety (90) days’, prior written notice specifying the date proposed for such prepayment and the amount which is to be prepaid (which notice shall be revocable by Borrower up to two (2) times during the term of the Loan by giving Lender not less than one (1) Business Day prior written notice of such revocation, provided that Borrower shall remain obligated to pay Lender’s costs and expenses including, without limitation, breakage costs incurred by Lender in connection with such revocation)prepaid.
(ii) Borrower Grantor shall also pay to Lender all interest due through and including the last day of the Interest Accrual Period in which such prepayment is being made, together with any and all other amounts due and owing pursuant to the terms of the Note, this Security Instrument or the other Loan Documents.
(iii) Any partial prepayment shall be in a minimum amount not less than $25,000 and shall be in whole multiples of $1,000 in excess thereof.
(iv) No Event of Default shall have occurred and be continuing.
(v) Any partial prepayment of the Principal Amount, including, without limitation, Unscheduled Payments, shall be applied to the installments of principal last due hereunder and shall not release or relieve Borrower Grantor from the obligation to pay the regularly scheduled installments of principal and interest becoming due under the Note.
Appears in 1 contract
Samples: Mortgage, Security Agreement, Assignment of Rents and Fixture Filing (RLJ Lodging Trust)
