Mezzanine Option. Borrower acknowledges and agrees that Mortgage Lender and Mezzanine A Lender shall have the options set forth in Section 11.6 of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively. Borrower shall cooperate with such lenders in such lenders’ exercise, from time to time, of any and all such options in good faith and in a timely manner, which cooperation shall include, but not be limited to, cooperating with respect to all of the actions and items specified and/or referenced in Section 11.6 of each of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively (subject to the limitations set forth therein, mutatis mutandis). Lender shall have the option (the “Mezzanine Option”) at any time to divide the Loan into two mezzanine loans, provided, that (i) the total loan amounts for such mezzanine loans shall equal the then outstanding amount of the Loan immediately prior to Lender’s exercise of the Mezzanine Option, (ii) the weighted average interest rate of such mezzanine loans shall equal the Interest Rate (except following an Event of Default) and (iii) the Allocated Loan Amounts shall be allocated between such mezzanine loans on a pro rata basis. Borrower shall cooperate with Lender in Lender’s exercise of the Mezzanine Option in good faith and in a timely manner, which such cooperation shall include, but not be limited to, (i) executing such amendments to the Loan Documents and organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies (provided, that any such amendment shall not change any economic or non-economic term, including the interest rate or the stated maturity, or otherwise have an adverse effect on Borrower, Guarantor and/or any of their Affiliates or increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents (in each case other than to a de minimus extent), except as provided in clause (ii) of the immediately preceding sentence), (ii) creating one or more Single Purpose Entities (the “New Mezzanine Borrower”), which such New Mezzanine Borrower shall (A) own, directly or indirectly, 100% of the equity ownership interests in Borrower (the “Equity Collateral”), and (B) together with such constituent equity owners of such New Mezzanine Borrower as may be designated by Lender, execute such customary agreements, instruments and other documents as may be required by Lender in connection with the mezzanine loan (including, without limitation, a promissory note evidencing the mezzanine loan and a pledge and security agreement pledging the Equity Collateral to Lender as security for the mezzanine loan); and (iii) delivering such opinions, title endorsements and UCC title insurance policies and using commercially reasonable efforts to deliver documents and/or instruments relating to the Property Documents and other materials as may be reasonably required by Lender or required by the Rating Agencies. Borrower acknowledges and agrees that the execution of any documents in connection with Lender’s exercise of the Mezzanine Option in accordance with terms and conditions hereof shall not in itself increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Northstar Realty Finance Corp.), Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.)
Mezzanine Option. Borrower acknowledges and agrees that Mortgage Lender, Mezzanine A Lender and Mezzanine A B Lender shall have the options set forth in Section 11.6 of the Mortgage Loan Agreement and Agreement, the Mezzanine A Loan Agreement and the Mezzanine B Loan Agreement, respectively. Borrower shall cooperate with such lenders in such lenders’ exercise, from time to time, of any and all such options in good faith and in a timely manner, which cooperation shall include, but not be limited to, cooperating with respect to all of the actions and items specified and/or referenced in Section 11.6 of each of the Mortgage Loan Agreement and Agreement, the Mezzanine A Loan Agreement and the Mezzanine B Loan Agreement, respectively (subject to the limitations set forth therein, mutatis mutandis). Lender shall have the option (the “Mezzanine Option”) at any time to divide the Loan into two mezzanine loans, provided, that (i) the total loan amounts for such mezzanine loans shall equal the then outstanding amount of the Loan immediately prior to Lender’s exercise of the Mezzanine Option, (ii) the weighted average interest rate of such mezzanine loans shall equal the Interest Rate (except following an Event of Default) and (iii) the Allocated Loan Amounts shall be allocated between such mezzanine loans on a pro rata basis. Borrower shall cooperate with Lender in Lender’s exercise of the Mezzanine Option in good faith and in a timely manner, which such cooperation shall include, but not be limited to, (i) executing such amendments to the Loan Documents and organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies (provided, that any such amendment shall not change any economic or non-economic term, including the interest rate or the stated maturity, or otherwise have an adverse effect on Borrower, Guarantor and/or any of their Affiliates or increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents (in each case other than to a de minimus extent), except as provided in clause (ii) of the immediately preceding sentence), (ii) creating one or more Single Purpose Entities (the “New Mezzanine Borrower”), which such New Mezzanine Borrower shall (A) own, directly or indirectly, 100% of the equity ownership interests in Borrower (the “Equity Collateral”), and (B) together with such constituent equity owners of such New Mezzanine Borrower as may be designated by Lender, execute such customary agreements, instruments and other documents as may be required by Lender in connection with the mezzanine loan (including, without limitation, a promissory note evidencing the mezzanine loan and a pledge and security agreement pledging the Equity Collateral to Lender as security for the mezzanine loan); and (iii) delivering such opinions, title endorsements and UCC title insurance policies and using commercially reasonable efforts to deliver documents and/or instruments relating to the Property Documents and other materials as may be reasonably required by Lender or required by the Rating Agencies. Borrower acknowledges and agrees that the execution of any documents in connection with Lender’s exercise of the Mezzanine Option in accordance with terms and conditions hereof shall not in itself increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.), Mezzanine Loan Agreement (Northstar Realty Finance Corp.)
Mezzanine Option. Borrower acknowledges and agrees that Mortgage Lender and Mezzanine A Lender shall have the options set forth in Section 11.6 of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively. Borrower shall cooperate with such lenders in such lenders’ exercise, from time to time, of any and all such options in good faith and in a timely manner, which cooperation shall include, but not be limited to, cooperating with respect to all of the actions and items specified and/or referenced in Section 11.6 of each of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively (subject to the limitations set forth therein, mutatis mutandis). Lender shall have the option right (the “Mezzanine Option”) at any time to divide the Loan loan into two parts, a mortgage loan and a mezzanine loansloan, provided, that (i) the total loan amounts for such mortgage loan and such mezzanine loans loan shall equal the then outstanding amount of the Loan immediately prior to Lender’s exercise of the Mezzanine Option, Option and (ii) the weighted average interest rate of such mortgage loan and mezzanine loans loan shall equal the Interest Rate (except following an Event of Default) and (iii) the Allocated Loan Amounts shall be allocated between such mezzanine loans on a pro rata basisRate. Borrower shall cooperate with Lender in Lender’s exercise of the Mezzanine Option in good faith and in a timely manner, which such cooperation shall include, but not be limited to, (i) executing such amendments to the Loan Documents and Borrower or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies (providedwhich such amendments shall include, without limitation, (1) providing that the Equity Collateral (defined below) be certificated (such that the holder of such certificated Equity Collateral would have “protected purchaser” status under Article 8 of the Uniform Commercial Code) and/or (2) providing that any such amendment shall not change any economic or non-economic term, including restrictions on the interest rate or the stated maturity, or otherwise have an adverse effect on actions of Mezzanine Borrower, Guarantor any SPE Component Entity and/or Borrower (such as the need to obtain the consent of any constituent parties of their Affiliates Mezzanine Borrower prior to taking any actions) shall be of no further force or increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents (in each case other than to effect upon a de minimus extent), except as provided in clause (ii) foreclosure of the immediately preceding sentenceEquity Collateral), (ii) creating one or more Single Purpose Entities a single purpose, bankruptcy remote entity satisfying the requirements of 4.3 hereof and of the Rating Agencies (the “New Mezzanine Borrower”), which such New Mezzanine Borrower shall (A) own, directly or indirectly, 100% of the equity ownership interests in Borrower (the “Equity Collateral”), and (B) together with such constituent equity owners of such New Mezzanine Borrower or Borrower as may be designated by Lender, execute such customary agreements, instruments and other documents as may be required by Lender in connection with the mezzanine loan (including, without limitation, a promissory note evidencing the mezzanine loan and a pledge and security agreement pledging the Equity Collateral to Lender as security for the mezzanine loan); and (iii) delivering such opinions, title endorsements and endorsements, UCC title insurance policies and using commercially reasonable efforts to deliver documents and/or instruments relating to the Property Documents and other materials as may be reasonably required by Lender or required by the Rating Agencies. Borrower Lender hereby acknowledges and agrees that that, notwithstanding anything to the execution of any documents in connection with Lender’s contrary contained herein, (i) the exercise of the Mezzanine Option in accordance with terms may not change the amount of aggregate amount of monthly debt service payments due under the Loan or the amortization term of the Loan and conditions hereof shall not in itself require Borrower to further subdivide the Property, (ii) the institution of the Mezzanine Option (and the documentation relating thereto) may not diminish any of Borrower’s (or Guarantor’s) rights or increase the obligations any potential costs or decrease the rights liabilities of Borrower pursuant (or Guarantor) other than to the extent the aforesaid rights, costs or liabilities would be affected if the Loan were divided into a mortgage loan portion and a mezzanine loan portion (as contemplated hereby) as of the date of closing of the Loan and (iii) with respect to the foregoing provisions of this Section 19.4, the same are (A) restrictions and requirements customarily imposed by Lender in connection with commercial loans similar to the Loan Documentsand (B) intended to be restrictions and requirements which are “consistent with customary commercial lending practices” within the meaning of the applicable provisions of Revenue Procedure 2002-22. Lender will pay its own and Borrower’s reasonable fees and expenses incurred in connection with the exercise of the Mezzanine Option.
Appears in 1 contract
Samples: Deed of Trust and Security Agreement (American Assets Trust, Inc.)
Mezzanine Option. Borrower acknowledges and agrees that Mortgage Lender and Mezzanine A Lender shall have the options set forth in Section 11.6 of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively. Borrower shall cooperate with such lenders in such lenders’ exercise, from time to time, of any and all such options in good faith and in a timely manner, which cooperation shall include, but not be limited to, cooperating with respect to all of the actions and items specified and/or referenced in Section 11.6 of each of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively (subject to the limitations set forth therein, mutatis mutandis). Lender shall have the option (the “Mezzanine Option”) at any time to divide the Loan into two parts, a mortgage loan and a mezzanine loansloan (such mezzanine loan, the “Senior Mezzanine Loan”), provided, that (i) the total loan amounts for such mezzanine loans mortgage loan and the Senior Mezzanine Loan shall equal the then outstanding amount of the Loan immediately prior to Lender’s exercise of the Mezzanine Option, Option and (ii) the weighted average interest rate of such mezzanine loans mortgage loan and the Senior Mezzanine Loan shall equal the Interest Rate (except following other than as the result of the application by Lender or mezzanine lender of payments and/or proceeds after an Event of DefaultDefault or an event of default under the Senior Mezzanine Loan) and (iii) the Allocated Loan Amounts shall be allocated between such mezzanine loans on a pro rata basis. Borrower shall shall, at Borrower’s sole cost and expense, cooperate with Lender in Lender’s exercise of the Mezzanine Option in good faith and in a timely manner, which such cooperation shall include, but not be limited to, (i) executing such amendments to the Loan Documents and Borrower or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies (provided, that any such amendment shall not change any economic or non-economic term, including the interest rate or the stated maturity, or otherwise have an adverse effect on Borrower, Guarantor and/or any of their Affiliates or increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents (in each case other than to a de minimus extent), except as provided in clause (ii) of the immediately preceding sentence)Agencies, (ii) creating one or more Single Purpose Entities (the “New Mezzanine Borrower”), which such New Mezzanine Borrower shall (A) own, directly or indirectly, 100% of the equity ownership interests in Borrower (the “Equity Collateral”), and (B) together with such constituent equity owners of such New Mezzanine Borrower as may be designated by Lender, execute such customary agreements, instruments and other documents as may be required by Lender in connection with the mezzanine loan Senior Mezzanine Loan (including, without limitation, a promissory note evidencing the mezzanine loan Senior Mezzanine Loan and a pledge and security agreement pledging the Equity Collateral to Lender as security for the mezzanine loan); and (iii) delivering such opinions, title endorsements and endorsements, UCC title insurance policies and using commercially reasonable efforts to deliver documents and/or instruments relating to the Property Documents and other materials as may be reasonably required by Lender or required by the Rating Agencies. Borrower hereby acknowledges and agrees that (1) the execution Permitted Mezzanine Financing shall at all times be junior and subordinate to the Senior Mezzanine Loan, (2) without limitation of the foregoing, the Equity Collateral will be of a more direct interest in Borrower and any documents SPC Component Entity than the equity collateral for the Permitted Mezzanine Financing, (3) Lender, in its capacity as Lender under the Senior Mezzanine Loan, shall be a party to the any intercreditor agreement entered into in connection with Lender’s exercise of the Permitted Mezzanine Option Financing, and (4) Borrower shall cooperate in accordance connection with terms and conditions hereof shall not in itself increase the obligations or decrease the rights of Borrower pursuant to the Loan Documentsforegoing.
Appears in 1 contract
Samples: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Mezzanine Option. Borrower acknowledges and agrees that Mortgage Lender and Mezzanine A Lender shall have the options set forth in Section 11.6 of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively. Borrower shall cooperate with such lenders in such lenders’ exercise, from time to time, of any and all such options in good faith and in a timely manner, which cooperation shall include, but not be limited to, cooperating with respect to all of the actions and items specified and/or referenced in Section 11.6 of each of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively (subject to the limitations set forth therein, mutatis mutandis). Lender shall have the option (the “Mezzanine Option”) at any time to divide the Loan into two parts, a mortgage loan and a mezzanine loansloan, provided, that (i) the total loan amounts for such mortgage loan and such mezzanine loans loan shall equal the then outstanding amount of the Loan immediately prior to Lender’s exercise of the Mezzanine Option, (ii) the weighted average interest rate of such mortgage loan and mezzanine loans loan shall initially equal the Interest Rate (except following an Event of Default) and (iii) Borrower’s other rights and obligations under the Allocated Loan Amounts Documents shall not be allocated between such otherwise materially and adversely affected (except to the extent that the same would be affected had the Loan been divided into a mortgage loan and a mezzanine loans loan on a pro rata basisthe Closing Date). Borrower shall shall, at Borrower’s sole cost and expense, cooperate with Lender in Lender’s exercise of the Mezzanine Option in good faith and in a timely manner, which such cooperation shall include, but not be limited to, (i) executing such amendments to the Loan Documents and Borrower or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies (provided, that any such amendment shall not change any economic or non-economic term, including the interest rate or the stated maturity, or otherwise have an adverse effect on Borrower, Guarantor and/or any of their Affiliates or increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents (in each case other than to a de minimus extent), except as provided in clause (ii) of the immediately preceding sentence)Agencies, (ii) creating one or more Single Purpose Entities (the “New Mezzanine Borrower”), which such New Mezzanine Borrower shall (A) own, directly or indirectly, 100% of the equity ownership interests in Borrower (the “Equity Collateral”), and (B) together with such constituent equity owners of such New Mezzanine Borrower as may be designated by Lender, execute such customary agreements, instruments and other documents as may be required by Lender in connection with the mezzanine loan (including, without limitation, a promissory note evidencing the mezzanine loan and a pledge and security agreement pledging the Equity Collateral to Lender as security for the mezzanine loan); and (iii) delivering such opinions, title endorsements and endorsements, UCC title insurance policies and using commercially reasonable efforts to deliver policies, documents and/or instruments relating to the Property Documents and other materials as may be reasonably required by Lender or required by the Rating Agencies. Notwithstanding anything herein to the contrary, Lender shall reimburse Borrower acknowledges and agrees that the execution of for any documents reasonable, out-of-pocket, third party costs incurred by Borrower in connection with Lender’s exercise this Section 11.6 (exclusive of the Mezzanine Option in accordance with terms and conditions hereof shall not in itself increase the obligations or decrease the rights of Borrower pursuant to the Loan DocumentsExcluded Items).
Appears in 1 contract
Samples: Loan Agreement (Lightstone Value Plus Real Estate Investment Trust III, Inc.)
Mezzanine Option. Borrower acknowledges and agrees that Mortgage Lender and Mezzanine A Lender shall have the options set forth in Section 11.6 of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively. Borrower shall cooperate with such lenders in such lenders’ exercise, from time to time, of any and all such options in good faith and in a timely manner, which cooperation shall include, but not be limited to, cooperating with respect to all of the actions and items specified and/or referenced in Section 11.6 of each of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively (subject to the limitations set forth therein, mutatis mutandis). Lender shall have the option (the “Mezzanine Option”) at any time to divide the Loan into two parts, a mortgage loan and a mezzanine loansloan, provided, that (i) the total loan amounts for such mortgage loan and such mezzanine loans loan shall equal the then outstanding amount of the Loan immediately prior to Lender’s exercise of the Mezzanine Option, and (ii) the weighted average interest rate of such mortgage loan and mezzanine loans loan shall equal the Interest Rate (except following an Event so long as there is no event of Default) and (iii) default or prepayment of principal of the Allocated Loan Amounts shall be allocated between such or mezzanine loans on a pro rata basisloan). Borrower Borrowers shall cooperate with Lender in Lender’s exercise of the Mezzanine Option in good faith and in a timely manner, which such cooperation shall include, but not be limited to, (i) executing such amendments to the Loan Documents and each Borrower or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies (provided, that any such amendment shall not change any economic or non-economic term, including the interest rate or the stated maturity, or otherwise have an adverse effect on Borrower, Guarantor and/or any of their Affiliates or increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents (in each case other than to a de minimus extent), except as provided in clause (ii) of the immediately preceding sentence)Agencies, (ii) creating one or more Single Purpose Entities (the “New Mezzanine Borrower”), which such New Mezzanine Borrower shall (A) own, directly or indirectly, one hundred percent (100% %) of the equity ownership interests in each Borrower (the “Equity Collateral”), and (B) together with such constituent equity owners of such New Mezzanine Borrower as may be designated by Lender, execute such customary agreements, instruments and other documents as may be required by Lender in connection with the mezzanine loan (including, without limitation, a promissory note evidencing the mezzanine loan and a pledge and security agreement pledging the Equity Collateral to Lender as security for the mezzanine loan); and (iii) delivering such opinions, title endorsements and endorsements, UCC title insurance policies and using commercially reasonable efforts to deliver documents and/or instruments relating to the Property Documents and other materials as may be reasonably required by Lender or required by the Rating Agencies. Borrower acknowledges Notwithstanding anything to the contrary contained in this Agreement or the other Loan Documents, other than costs and agrees that expenses which are otherwise the execution responsibility of Borrowers pursuant to the terms of the Loan Documents, Borrowers shall not be responsible for the payment of any documents costs and expenses incurred in connection with Lender’s exercise of Lender exercising the Mezzanine Option in accordance with terms Option, other than any internal, administrative or clerical cost and conditions hereof shall not in itself increase the obligations or decrease the rights of Borrower pursuant to the Loan Documentsexpenses incurred by Borrowers.
Appears in 1 contract
Mezzanine Option. Borrower acknowledges and agrees that Mortgage Lender and Mezzanine A Lender shall have the options set forth in Section 11.6 of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively. Borrower shall cooperate with such lenders in such lenders’ exercise, from time to time, of any and all such options in good faith and in a timely manner, which cooperation shall include, but not be limited to, cooperating with respect to all of the actions and items specified and/or referenced in Section 11.6 of each of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively (subject to the limitations set forth therein, mutatis mutandis). Lender shall have the option (the “Mezzanine Option”) at any time to divide the Loan into two parts, a mortgage loan and a mezzanine loansloan, provided, that (i) the total loan amounts for such mortgage loan and such mezzanine loans loan shall equal the then outstanding amount of the Loan immediately prior to Lender’s exercise of the Mezzanine Option, and (ii) the weighted average interest rate of such mortgage loan and mezzanine loans loan shall equal the Interest Rate (except following an Event without giving effect to any deviation attributable to the imposition of Defaultany rate of interest at the Default Rate or prepayments occurring pursuant to Section 2.7(b) and (iiior 2.7(c) the Allocated Loan Amounts shall be allocated between such mezzanine loans on a pro rata basishereof). Borrower shall cooperate with Lender in Lender’s exercise of the Mezzanine Option in good faith and in a timely manner, which such cooperation shall include, but not be limited to, (i) executing such amendments to the Loan Documents and Borrower or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies (provided, that any such amendment shall not change any economic or non-economic term, including the interest rate or the stated maturity, or otherwise have an adverse effect on Borrower, Guarantor and/or any of their Affiliates or increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents (in each case other than to a de minimus extent), except as provided in clause (ii) of the immediately preceding sentence)Agencies, (ii) creating one or more Single Purpose Entities (the “New Mezzanine Borrower”), which such New Mezzanine Borrower shall (A) own, directly or indirectly, 100% of the equity ownership interests in Borrower (the “Equity Collateral”), and (B) together with such constituent equity owners of such New Mezzanine Borrower as may be designated by Lender, execute such customary agreements, instruments and other documents as may be reasonably required by Lender in connection with the mezzanine loan (including, without limitation, a promissory note evidencing the mezzanine loan and a pledge and security agreement pledging the Equity Collateral to Lender as security for the mezzanine loan); and (iii) delivering such opinions, title endorsements and endorsements, UCC title insurance policies and using commercially reasonable efforts to deliver policies, documents and/or instruments relating to the Property Documents and other materials as may be reasonably required by Lender or required by the Rating Agencies. Borrower acknowledges Notwithstanding anything contained herein to the contrary, (A) Lender shall have the right to apply all payments to the Debt during the continuance of an Event of Default in such order as Lender determines in its sole discretion and agrees to require that (x) no sums shall be paid to Mezzanine Lender under the execution Mezzanine Loan during the existence of any documents an Event of Default, and (y) all Net Proceeds be applied to the Loan to the exclusion of the Mezzanine Loan. The rights and remedies of the holder of the Mezzanine Loan shall be separate, distinct and in connection with addition to the rights and remedies of Lender under the Loan. In no event shall Lender’s exercise of the Mezzanine Option Option, or the consummation of the applicable transaction pursuant thereto (a) alter the economic terms of the Loan except as expressly provided in accordance with terms this Section 11.6 or (b) negatively affect in any manner the rights and conditions hereof obligations of Borrower or Guarantor under the Loan Documents other than to a de minimis extent or except as expressly provided in this Section 11.6. Notwithstanding anything to the contrary contained herein, Borrower shall not be responsible to pay for any costs and expenses incurred by Borrower in itself increase connection with complying with the obligations or decrease the rights terms of Borrower pursuant to the Loan Documentsthis Section 11.6 other than its counsel’s fees in excess of $10,000.
Appears in 1 contract
Mezzanine Option. Borrower acknowledges and agrees that Mortgage Lender and Mezzanine A Lender shall have the options set forth in Section 11.6 of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively. Borrower shall cooperate with such lenders in such lenders’ exercise, from time to time, of any and all such options in good faith and in a timely manner, which cooperation shall include, but not be limited to, cooperating with respect to all of the actions and items specified and/or referenced in Section 11.6 of each of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively (subject to the limitations set forth therein, mutatis mutandis). Lender shall have the option (the “Mezzanine Option”) at any time to divide the Loan into two parts, a mortgage loan and a mezzanine loansloan, provided, that (i) the total loan amounts for such mortgage loan and such mezzanine loans loan shall equal the then outstanding amount of the Loan immediately prior to Lender’s exercise of the Mezzanine Option, (ii) the weighted average interest rate of such mortgage loan and mezzanine loans loan shall initially equal the Interest Rate (except following an Event of Default) and Rate, (iii) the Allocated Loan Amounts shall be allocated between such mezzanine loans on a pro rata basisloan shall have the same maturity date as the Maturity Date hereunder and (iv) no amortization of principal of the Loan will be required. Borrower shall shall, at Borrower’s sole cost and expense, reasonably cooperate with Lender in Lender’s exercise of the Mezzanine Option in good faith and in a timely manner, which such cooperation shall include, but not be limited to, (i) executing such amendments to the Loan Documents and Borrower or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies (provided, that any such amendment shall not change any economic or non-economic term, including the interest rate or the stated maturity, or otherwise have an adverse effect on Borrower, Guarantor and/or any of their Affiliates or increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents (in each case other than to a de minimus extent), except as provided in clause (ii) of the immediately preceding sentence)Agencies, (ii) creating one or more Single Purpose Entities (the “New Mezzanine Borrower”), which such New Mezzanine Borrower shall (A) own, directly or indirectly, one hundred percent (100% %) of the equity ownership interests in Borrower (the “Equity Collateral”), and (B) together with such constituent equity owners of such New Mezzanine Borrower as may be designated by Lender, execute such customary agreements, instruments and other documents as may be reasonably required by Lender in connection with the mezzanine loan (including, without limitation, a promissory note evidencing the mezzanine loan and a pledge and security agreement pledging the Equity Collateral to Lender as security for the mezzanine loan); and (iii) delivering such opinions, title endorsements and endorsements, UCC title insurance policies and using commercially reasonable efforts to deliver documents and/or instruments relating to the Property Documents and other materials as may be reasonably required by Lender or required by or the Rating Agencies. ; provided, that none of the foregoing actions shall decrease any rights or increase any obligations of Borrower acknowledges or any other Borrower Party under the Loan Documents, other than to a non-material extent, it being acknowledged and agrees agreed that the execution of any documents in connection with Lender’s exercise of customary remedies under the Mezzanine Option in accordance with terms and conditions hereof related mezzanine loan documents shall not in itself be considered to decrease the rights or increase the obligations or decrease the rights of Borrower pursuant to the Loan DocumentsBorrower.
Appears in 1 contract
Mezzanine Option. Borrower acknowledges and agrees that Mortgage Lender and Mezzanine A Lender shall have the options set forth in Section 11.6 of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively. Borrower shall cooperate with such lenders in such lenders’ exercise, from time to time, of any and all such options in good faith and in a timely manner, which cooperation shall include, but not be limited to, cooperating with respect to all of the actions and items specified and/or referenced in Section 11.6 of each of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively (subject to the limitations set forth therein, mutatis mutandis). Lender shall have the option (the “Mezzanine Option”) at any time to divide the Loan into two parts, a mortgage loan and a mezzanine loansloan, provided, that (i) the total loan amounts for such mortgage loan and such mezzanine loans loan shall equal the then outstanding amount of the Loan immediately prior to LenderXxxxxx’s exercise of the Mezzanine Option, and (ii) the weighted average interest rate of such mortgage loan and mezzanine loans loan shall equal not exceed the Interest Rate (except following an Event for changes to the weighted average interest rate as may be caused by the imposition of Default) and default interest under the mezzanine loan or the mortgage loan or any voluntary or involuntary prepayment of the mortgage loan (iii) the Allocated Loan Amounts shall be allocated between including, without limitation, any such mezzanine loans on prepayment that may occur in connection with a pro rata basisCasualty or Condemnation)). Borrower shall shall, at Borrower’s sole cost and expense, cooperate with Lender in Lender’s exercise of the Mezzanine Option in good faith and in a timely manner, which such cooperation shall include, but not be limited to, (i) executing such amendments to the Loan Documents and Borrower or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies (provided, that any such amendment shall not change any economic or non-economic term, including the interest rate or the stated maturity, or otherwise have an adverse effect on Borrower, Guarantor and/or any of their Affiliates or increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents (in each case other than to a de minimus extent), except as provided in clause (ii) of the immediately preceding sentence)Agencies, (ii) creating one or more Single Purpose Entities (the “New Mezzanine Borrower”), which such New Mezzanine Borrower shall (A) own, directly or indirectly, 100% of the equity ownership interests in Borrower (the “Equity Collateral”), and (B) together with such constituent equity owners of such New Mezzanine Borrower as may be designated by Lender, execute such customary agreements, instruments and other documents as may be required by Lender in connection with the mezzanine loan (including, without limitation, a promissory note evidencing the mezzanine loan and a pledge and security agreement pledging the Equity Collateral to Lender as security for the mezzanine loan); and (iii) delivering such opinions, title endorsements and endorsements, UCC title insurance policies and using commercially reasonable efforts to deliver policies, documents and/or instruments relating to the Property Documents and other materials as may be reasonably required by Lender or required by the Rating Agencies. Borrower acknowledges and agrees that the execution of any documents in connection with Lender’s exercise of the Mezzanine Option in accordance with terms and conditions hereof shall not in itself increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (Clipper Realty Inc.)
Mezzanine Option. Borrower acknowledges Without limiting Agent’s or Lenders’ rights to implement a Loan Bifurcation, Agent and agrees that Mortgage Lender and Mezzanine A Lender Lenders shall have the options set forth in Section 11.6 of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively. Borrower shall cooperate with such lenders in such lenders’ exercise, from time to time, of any and all such options in good faith and in a timely manner, which cooperation shall include, but not be limited to, cooperating with respect to all of the actions and items specified and/or referenced in Section 11.6 of each of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively (subject to the limitations set forth therein, mutatis mutandis). Lender shall have the option (the “Mezzanine Option”) right at any time to divide the Loan loan into two or more parts, a mortgage loan and one or more mezzanine loansloan(s), provided, that (i) the total loan amounts for such mortgage loan and such mezzanine loans loan(s) shall equal the then outstanding principal amount of the Loan immediately prior to LenderAgent’s or Lenders’ exercise of the Mezzanine Optionits rights pursuant to this Section 9.4, and (ii) the weighted average interest rate of such mortgage loan and such mezzanine loans loan(s) immediately after Agent’s or Lenders’ exercise of its rights pursuant to the terms and provisions of this Section 9.4 shall equal the Applicable Interest Rate (except following an Event of Default) Rate, and (iii) the Allocated Loan Amounts so long as an Event of Default shall not be continuing, all prepayments shall be allocated between such mezzanine loans on a made pro rata basisto the Loan and Mezzanine Loan(s). Borrower shall cooperate with Agent and Lender in LenderAgent’s or Lenders’ exercise of the Mezzanine Option its rights under this Section 9.4 in good faith and in a timely manner, which such cooperation shall include, but not be limited to, (i) executing such amendments to the Loan Documents and Borrower or any SPE Party’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies (Agent; provided, that any such amendment however, that, except as otherwise described in this Section 9.4, in no event shall not change any economic or non-economic termthe creation of a mezzanine loan(s) (y) increase, including the interest rate or the stated maturity, or otherwise have an adverse effect on Borrower, Guarantor and/or any of their Affiliates or increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents (in each case other than except to a de minimus minimis extent), Borrower’s obligations or (z) decrease, except as provided in clause (ii) to a de minimis extent, Borrower’s rights, under the Loan Documents; provided, however, Borrower acknowledges and agrees that the time necessary to complete a mezzanine foreclosure may be shorter than the time necessary to complete a mortgage foreclosure and each mezzanine loan shall have its own consent and approval rights independent of the immediately preceding sentence), Loan and neither of these features of a mezzanine loan shall constitute an increase in Borrower’s obligations or a decrease in Borrower’s rights under the Loan Documents; (ii) creating one or more Single Purpose Entities (single purpose, bankruptcy remote entities satisfying the “New Mezzanine Borrower”)requirements of Section 3.1.24 hereof and meeting Rating Agency Criteria, which such New Mezzanine Borrower mezzanine borrowers shall (A) own, directly or indirectly, one hundred percent (100% %) of the equity ownership interests in Borrower (the “Equity Collateral”)Borrower, and (B) together with such constituent equity owners of such New Mezzanine Borrower mezzanine borrower as may be designated by Agent or Lender, execute such customary agreements, instruments and other documents as may be required by Agent or Lender in connection with the mezzanine loan loan(s) (including, without limitation, a promissory note evidencing the each mezzanine loan and a pledge and security agreement pledging the Equity Collateral equity ownership interests in Borrower to Lender Agent for the ratable benefit of Lenders as security for the each mezzanine loan); and (iii) delivering such opinions, title endorsements, UCC insurance policies, mezzanine endorsements and UCC title insurance to owner’s policies and using commercially reasonable efforts to deliver documents and/or instruments relating to the Property Documents and other materials as may be reasonably required by Agent, Lender or required by the and Rating Agencies. Borrower acknowledges and agrees that the execution of any documents in connection with Lender’s exercise of the Mezzanine Option in accordance with terms and conditions hereof shall not in itself increase the obligations or decrease the rights of Borrower pursuant to the Loan DocumentsAgency Criteria.
Appears in 1 contract
Samples: Loan Agreement (Black Creek Diversified Property Fund Inc.)
Mezzanine Option. Borrower acknowledges and agrees that Mortgage Lender and shall have the option set forth in Section 13.8 of the Mortgage Loan Agreement, Mezzanine A Lender shall have the options option set forth in Section 11.6 13.8 of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement, Mezzanine B Lender shall have the option set forth in Section 13.8 of the Mezzanine B Loan Agreement respectivelyand Mezzanine C Lender shall have the option set forth in Section 13.8 of the Mezzanine C Loan Agreement. Borrower shall cooperate with such lenders Mortgage Lender, Mezzanine A Lender, Mezzanine B Lender, Mezzanine C Lender and Lender in such lenders’ Mortgage Lender’s, Mezzanine B Lender’s, Mezzanine C Lender’s and/or Mezzanine A Lender’s exercise, from time to time, of any and all such options in good faith and in a timely manner, which cooperation shall include, but not be limited to, cooperating with respect to all of the actions and items specified and/or referenced in Section 11.6 of each 13.8 of the Mortgage Loan Agreement and Agreement, Section 13 of the Mezzanine A Loan Agreement, Section 13 of the Mezzanine B Loan Agreement respectively and Section 13 of the Mezzanine C Loan Agreement (subject to the limitations set forth therein, mutatis mutandis). Lender Lender, without in any way limiting Lender’s other rights hereunder, shall have the option one-time unilateral right, in its sole and absolute discretion, to require Borrower to divide the Loan into two mezzanine loans (the “(the “Mezzanine Option”) at any time to divide the Loan into two mezzanine loans, for which different interest rates and debt service payments may be established for each loan in such order of priority as may be designated by Lender; provided, that (i) the total loan amounts for such mezzanine loans shall equal the then outstanding amount of the Loan immediately prior to Lender’s exercise of the Mezzanine Optionrestructuring, (ii) the weighted average interest rate of such mezzanine loans shall equal the Interest Rate (except following an Event of Default) and (iii) the Allocated Loan Amounts shall be allocated between such mezzanine loans on a pro rata basis. Borrower shall cooperate with Lender in Lender’s exercise of the Mezzanine Option in good faith and in a timely manner, which such cooperation shall include, but not be limited to, (i) executing such amendments to the Loan Documents and organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies (provided, that any such amendment shall not change any economic or non-economic term, including the interest rate or the stated maturity, or otherwise have an adverse effect on Borrower, Guarantor and/or any of their Affiliates or increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents (in each case other than to a de minimus extent), except as provided in clause (ii) of the immediately preceding sentence), (ii) creating one or more Single Purpose Entities (the “New Mezzanine Borrower”), which such New Mezzanine Borrower shall (A) own, directly or indirectly, 100% of the equity ownership interests in Borrower (the “Equity Collateral”), and (B) together with such constituent equity owners of such New Mezzanine Borrower as may be designated by Lender, execute such customary agreements, instruments and other documents as may be required by Lender in connection with the mezzanine loan (including, without limitation, a promissory note evidencing the mezzanine loan and a pledge and security agreement pledging the Equity Collateral to Lender as security for the mezzanine loan); and (iii) delivering such opinions, title endorsements and UCC title insurance policies and using commercially reasonable efforts to deliver documents and/or instruments relating to the Property Documents and other materials as may be reasonably required by Lender or required by the Rating Agencies. Borrower acknowledges and agrees that the execution of any documents in connection with Lender’s exercise of the Mezzanine Option in accordance with terms and conditions hereof shall not in itself increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents.rate
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Mezzanine Option. Borrower acknowledges Without limiting Agent’s or Lenders’ rights to implement a Loan Bifurcation, Agent and agrees that Mortgage Lender and Mezzanine A Lender Lenders shall have the options set forth in Section 11.6 of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively. Borrower shall cooperate with such lenders in such lenders’ exercise, from time to time, of any and all such options in good faith and in a timely manner, which cooperation shall include, but not be limited to, cooperating with respect to all of the actions and items specified and/or referenced in Section 11.6 of each of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively (subject to the limitations set forth therein, mutatis mutandis). Lender shall have the option right (the “Senior Mezzanine Option”) at any time to divide the Loan into two or more parts, a mortgage loan and one or more mezzanine loansloan(s), provided, that (i) the total loan amounts for such mortgage loan and such mezzanine loans loan(s) shall equal the then outstanding principal amount of the Loan immediately prior to LenderAgent’s or Lenders’ exercise of the Senior Mezzanine Option, and (ii) the weighted average interest rate of such mortgage loan and such mezzanine loans loan(s) immediately after Agent’s or Lenders’ exercise of the Senior Mezzanine Option shall equal the Applicable Interest Rate (except following an Event of Default) Rate, and (iii) the Allocated Loan Amounts so long as an Event of Default shall not be continuing, all prepayments shall be allocated between such mezzanine loans on a made pro rata basisto the Loan and Mezzanine Loan(s). Borrower shall cooperate with Agent and Lender in LenderAgent’s or Lenders’ exercise of the Mezzanine Option its rights under this Section 9.4 in good faith and in a timely manner, which such cooperation shall include, but not be limited to, (i) executing such amendments to the Loan Documents and Borrower or any SPE Party’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies (Agent; provided, that any such amendment however, that, except as otherwise described in this Section 9.4, in no event shall not change any economic or non-economic termthe creation of a mezzanine loan(s) (y) increase, including the interest rate or the stated maturity, or otherwise have an adverse effect on Borrower, Guarantor and/or any of their Affiliates or increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents (in each case other than except to a de minimus minimis extent), Borrower’s obligations or (z) decrease, except as provided in clause (ii) to a de minimis extent, Borrower’s rights, under the Loan Documents; provided, however, Borrower acknowledges and agrees that the time necessary to complete a mezzanine foreclosure may be shorter than the time necessary to complete a mortgage foreclosure and each mezzanine loan shall have its own consent and approval rights independent of the immediately preceding sentence), Loan and neither of these features of a mezzanine loan shall constitute an increase in Borrower’s obligations or a decrease in Borrower’s rights under the Loan Documents; (ii) creating one or more Single Purpose Entities single purpose, bankruptcy remote entities satisfying the requirements of Section 3.1.24 hereof and meeting Rating Agency Criteria (the “New Senior Mezzanine Borrower”), which such New Mezzanine Borrower mezzanine borrowers shall (A) own, directly or indirectly, one hundred percent (100% %) of the equity ownership interests in Borrower (the “Senior Mezzanine Equity Collateral”), and (B) together with such constituent equity owners of such New Mezzanine Borrower mezzanine borrower as may be designated by Agent or Lender, execute such customary agreements, instruments and other documents as may be required by Agent or Lender in connection with the mezzanine loan loan(s) (including, without limitation, a promissory note evidencing the each mezzanine loan (the “Senior Mezzanine Loan”) and a pledge and security agreement pledging the Equity Collateral equity ownership interests in Borrower to Lender Agent for the ratable benefit of Lenders as security for the mezzanine loanSenior Mezzanine Loan); and (iii) delivering such opinions, title endorsements, UCC insurance policies, mezzanine endorsements and UCC title insurance to owner’s policies and using commercially reasonable efforts to deliver documents and/or instruments relating to the Property Documents and other materials as may be reasonably required by Agent, Lender and Rating Agency Criteria. Notwithstanding anything to the contrary contained herein or required by the Rating Agencies. in any other Loan Document, Borrower hereby acknowledges and agrees that (1) the execution Mezzanine Loan shall at all times be junior and subordinate to the Senior Mezzanine Loan, (2) without limitation of the foregoing, the Senior Mezzanine Equity Collateral will be of a more direct interest in Borrower and any documents SPE Party than the Mezzanine Equity Collateral, (3) Agent and Lenders, in their capacity as Agent and Lenders under the Senior Mezzanine Loan shall be a party to the Mezzanine Intercreditor, and (4) Borrower shall cooperate (and shall use commercially reasonable efforts to cause each of Mezzanine Borrower, Mezzanine Agent and Mezzanine Lenders to cooperate) in connection with Lender’s exercise of the Mezzanine Option in accordance with terms and conditions hereof foregoing (which such cooperation shall not in itself increase include, to the obligations or decrease the rights of Borrower pursuant extent required, executing such amendments to the Loan Documents, Mezzanine Loan Documents and the organizational documents of such direct or indirect owners of Borrower, in each case, as may be reasonably required by Agent in connection therewith).
Appears in 1 contract
Samples: Loan Agreement (Black Creek Diversified Property Fund Inc.)
Mezzanine Option. Borrower acknowledges and agrees that Mortgage Lender and Mezzanine A Lender shall have the options set forth in Section 11.6 of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively. Borrower shall cooperate with such lenders in such lenders’ exercise, from time to time, of any and all such options in good faith and in a timely manner, which cooperation shall include, but not be limited to, cooperating with respect to all of the actions and items specified and/or referenced in Section 11.6 of each of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively (subject to the limitations set forth therein, mutatis mutandis). a) Lender shall have the option (the “Mezzanine Option”) at any time to divide the Loan into two parts, a mortgage loan and a mezzanine loansloan, provided, that (i) the total loan amounts for such mortgage loan and such mezzanine loans loan shall equal the then outstanding amount of the Loan immediately prior to LenderXxxxxx’s exercise of the Mezzanine Option, and (ii) the weighted average interest rate of such mortgage loan and mezzanine loans loan shall initially equal the Interest Rate (except following an Event of Default) and (iii) the Allocated Loan Amounts shall be allocated between such mezzanine loans on a pro rata basisRate. Borrower shall shall, at Xxxxxxxx’s sole cost and expense, cooperate with Lender in Lender’s exercise of the Mezzanine Option in good faith and in a timely manner, which such cooperation shall include, but not be limited to, (i) executing such amendments to the Loan Documents and organizational documents as may be reasonably requested Borrower or any
(b) Lender acknowledges and agrees that (a) the exercise of Senior Lender’s right pursuant to Section 9.5 of the Senior Loan Agreement to require a mezzanine loan (the “Senior Mezzanine Loan”), the performance by Lender or requested by Borrower of its obligations thereunder in accordance with the Rating Agencies (provided, that any such amendment terms thereof shall not change any economic constitute a Default or non-economic termEvent of Default hereunder provided that, including the interest rate or the stated maturityin connection therewith, or otherwise have an adverse effect on Borrower, Guarantor and/or any of their Affiliates or increase the obligations or decrease the rights of Borrower pursuant shall enter into such modifications to the Loan Documents (in each case other than to a de minimus extent), except as provided in clause (ii) of the immediately preceding sentence), (ii) creating one or more Single Purpose Entities (the “New Mezzanine Borrower”), which such New Mezzanine Borrower shall (A) own, directly or indirectly, 100% of the equity ownership interests in Borrower (the “Equity Collateral”), and (B) together with such constituent equity owners of such New Mezzanine Borrower as may be designated by Lender, execute such customary agreements, instruments and other documents as may be required by Lender in connection with the mezzanine loan (including, without limitation, a promissory note evidencing the mezzanine loan and a pledge and security agreement pledging the Equity Collateral to Lender as security for the mezzanine loan); and (iii) delivering such opinions, title endorsements and UCC title insurance policies and using commercially reasonable efforts to deliver documents and/or instruments relating to the Property Documents and other materials as may be reasonably required by Lender to reflect the Senior Mezzanine Loan, which amendments shall not result in any increase in Borrower’s obligations under the Loan Documents or any decrease in Borrower’s rights under the Loan Documents, in each case, except to a de minimis extent and (b) Lender shall cooperate with the exercise of Senior Lender’s rights pursuant to Section 9.5 of the Senior Loan Agreement as required by the Rating Agenciesterms thereof and subject to any limitations set forth therein. Borrower acknowledges Notwithstanding anything in this Agreement to the contrary, Senior Lender and agrees that the execution Xxxxxx may agree that, in lieu of any documents in connection with Lender’s exercise a Senior Mezzanine Loan pursuant to Section 9.5 of the Mezzanine Option in accordance with terms and conditions hereof shall not in itself Senior Loan Agreement, Lender will increase the obligations or decrease amount of the rights Loan. In such case: (i) the references in Section 9.5 of the Senior Loan Agreement to the Senior Mezzanine Loan shall be deemed to refer to the amount of the increase of the Loan (and resultant reduction in the amount of the Senior Loan);
(ii) Borrower shall continue as the obligor with respect to the Loan, in lieu of requiring a Senior Mezzanine Borrower; and (iii) Borrower shall cooperate with Lender and Senior Lender pursuant to the Loan Documents.terms of Section 9.5
Appears in 1 contract
Samples: Junior Loan Agreement (Silver Star Properties Reit, Inc)
Mezzanine Option. Borrower acknowledges and agrees that Mortgage Lender and Mezzanine A Lender shall have the options option set forth in Section 11.6 13.8 of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectivelyAgreement. Borrower shall cooperate with such lenders Mortgage Lender and Lender in such lenders’ Mortgage Lender’s exercise, from time to time, of any and all such options in good faith and in a timely manner, which cooperation shall include, but not be limited to, cooperating with respect to all of the actions and items specified and/or referenced in Section 11.6 of each 13.8 of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively (subject to the limitations set forth therein, mutatis mutandis). Lender Lender, without in any way limiting Lender’s other rights hereunder, shall have the option one-time unilateral right, in its sole and absolute discretion, to require Borrower to divide the Loan into two mezzanine loans (the “(the “Mezzanine Option”) at any time to divide the Loan into two mezzanine loans, for which different interest rates and debt service payments may be established for each loan in such order of priority as may be designated by Lender; provided, that (i) the total loan amounts for such mezzanine loans shall equal the then outstanding amount of the Loan immediately prior to Lender’s exercise of the Mezzanine Optionrestructuring, (ii) the weighted average interest rate of such mezzanine loans shall on the date created equal the Interest Rate (interest rate which was applicable to the Loan immediately prior to the restructuring except following an Event of DefaultDefault or following any prepayment (whether resulting from the application of Net Proceeds after a Casualty or Condemnation or otherwise) of the Loan 00000000.0.XXXXXXXX which is not made on a pro rata basis with the Mortgage Loan and each Other Mezzanine Loan (including the New Mezzanine Loan) in accordance with this Agreement, the Mortgage Loan Agreement and each Other Mezzanine Loan Agreement), (iii) the debt service payments on the two mezzanine loans shall on the date created equal the debt service payment which was due under the Loan immediately prior to the restructuring; and provided further that any such restructuring carried out after the closing of the Loan shall be at no material cost to Borrower and (iiiiv) the Allocated Loan Amounts shall be allocated between such mezzanine loans on a pro rata basis. Borrower shall cooperate with all reasonable requests of Lender in Lender’s exercise order to restructure the Loan and create the two mezzanine loans and shall (A) execute and deliver (1) such documents including, without limitation, in the case of the Mezzanine Option in good faith new mezzanine loan, a mezzanine note, a mezzanine loan agreement, a pledge and in security agreement and a timely mannermezzanine deposit account agreement, which such cooperation shall include, but not be limited to, and (i2) executing such amendments to the Loan Documents and organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies (provided, that any such amendment shall not change any economic or non-economic term, including the interest rate or the stated maturity, or otherwise have an adverse effect on Borrower, Guarantor and/or any of their Affiliates or increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents (in each case other than to a de minimus extent), except as provided in clause (ii) of the immediately preceding sentence)documents, (iiB) creating one or more Single Purpose Entities cause Borrower’s counsel to deliver such legal opinions, (C) create such bankruptcy remote borrower (the “New Mezzanine Borrower”), which such New Mezzanine Borrower shall (A) own, directly or indirectly, 100% of the equity ownership interests in Mortgage Borrower (the “Equity Collateral”), and (BD) together with create such constituent equity owners of bankruptcy remote additional pledgor (the “New Additional Pledgor”), which such New Mezzanine Borrower as may be designated by LenderAdditional Pledgor shall own, execute such customary agreementsdirectly or indirectly, instruments and other documents as may be required by Lender 100% of the equity ownership interests in connection with HHSD, and, in the mezzanine loan case of each of (includingA), without limitation(B), a promissory note evidencing the mezzanine loan and a pledge and security agreement pledging the Equity Collateral to Lender as security for the mezzanine loan); (C) and (iiiD) delivering such opinionsabove, title endorsements and UCC title insurance policies and using commercially reasonable efforts to deliver documents and/or instruments relating to the Property Documents and other materials as may shall be reasonably required by Lender or and required by any Rating Agency in connection therewith, all in form and substance reasonably satisfactory to Lender and satisfactory to any such Rating Agency, including the Rating Agenciesseverance of this Agreement, the Pledge Agreement and other Loan Documents if requested. In the event such documents are in a form reasonably acceptable to Borrower and Borrower fails to execute and deliver such documents to Lender within ten (10) Business Days following such request by Lender, Borrower hereby absolutely and irrevocably appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect such transactions, Borrower ratifying all that such attorney shall do by virtue thereof. It shall be an Event of Default if Borrower fails to comply with any of the terms, covenants or conditions of this Section 13.8 after the expiration of ten (10) Business Days after notice thereof. Borrower acknowledges shall be required to pay the costs and agrees that expenses of its own legal counsel in complying with the execution terms of any documents in connection with Lender’s exercise of the Mezzanine Option in accordance with terms and conditions hereof shall not in itself increase the obligations or decrease the rights of Borrower pursuant to the Loan Documentsthis Section 13.8.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Mezzanine Option. Borrower acknowledges and agrees that Mortgage Lender shall have the option set forth in Section 13.8 of the Mortgage Loan Agreement and Mezzanine A Lender shall have the options option set forth in Section 11.6 13.8 of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectivelyAgreement. Borrower shall cooperate with such lenders Mortgage Lender, Mezzanine A Lender and Lender in such lenders’ Mortgage Lender’s and/or Mezzanine A Lender’s exercise, from time to time, of any and all such options in good faith and in a timely manner, which cooperation shall include, but not be limited to, cooperating with respect to all of the actions and items specified and/or referenced in Section 11.6 of each 13.8 of the Mortgage Loan Agreement and Section 13 of the Mezzanine A Loan Agreement respectively (subject to the limitations set forth therein, mutatis mutandis). Lender Lender, without in any way limiting Lender’s other rights hereunder, shall have the option one-time unilateral right, in its sole and absolute discretion, to require Borrower to divide the Loan into two mezzanine loans (the “(the “Mezzanine Option”) at any time to divide the Loan into two mezzanine loans, for which different interest rates and debt service payments may be established for each loan in such order of priority as may be designated by Lender; provided, that (i) the total loan amounts for such mezzanine loans shall equal the then outstanding amount of the Loan immediately prior to Lender’s exercise of the Mezzanine Optionrestructuring, (ii) the weighted average interest rate of such mezzanine loans shall on the date created equal the Interest Rate (interest rate which was applicable to the Loan immediately prior to the restructuring except following an Event of DefaultDefault or following any prepayment (whether resulting from the application of Net Proceeds after a Casualty or Condemnation or otherwise) of the Loan which is not made on a pro rata basis with the Mortgage Loan and each Other Mezzanine Loan (including the New Mezzanine Loan) in accordance with this Agreement, the Mortgage Loan Agreement and each Other Mezzanine Loan Agreement), (iii) the debt service payments on the two mezzanine loans shall on the date created equal the debt service payment which was due under the Loan immediately prior to the restructuring; and provided further that any such restructuring carried out after the closing of the Loan shall be at no material cost to Borrower and (iiiiv) the Allocated Loan Amounts shall be allocated between such mezzanine loans on a pro rata basis. Borrower shall cooperate with all reasonable requests of Lender in Lender’s exercise order to restructure the Loan and create the two mezzanine loans and shall (A) execute and deliver (1) such documents including, without limitation, in the case of the Mezzanine Option in good faith new mezzanine loan, a mezzanine note, a mezzanine loan agreement, a pledge and in security agreement and a timely mannermezzanine deposit account agreement, which such cooperation shall include, but not be limited to, and (i2) executing such amendments to the Loan Documents and organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies (provided, that any such amendment shall not change any economic or non-economic term, including the interest rate or the stated maturity, or otherwise have an adverse effect on Borrower, Guarantor and/or any of their Affiliates or increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents (in each case other than to a de minimus extent), except as provided in clause (ii) of the immediately preceding sentence)documents, (iiB) creating one or more Single Purpose Entities cause Borrower’s counsel to deliver such legal opinions, (C) create such bankruptcy remote borrower (the “New Mezzanine Borrower”), which such New Mezzanine Borrower shall (A) own, directly or indirectly, 100% of the equity ownership interests in Mezzanine A Borrower (the “Equity Collateral”), and (BD) together with create such constituent equity owners of bankruptcy remote additional pledgor (the “New Additional Pledgor”), which such New Mezzanine Borrower as may be designated by LenderAdditional Pledgor shall own, execute such customary agreements, instruments and other documents as may be required by Lender in connection with the mezzanine loan (including, without limitation, a promissory note evidencing the mezzanine loan and a pledge and security agreement pledging the Equity Collateral to Lender as security for the mezzanine loan); and (iii) delivering such opinions, title endorsements and UCC title insurance policies and using commercially reasonable efforts to deliver documents and/or instruments relating to the Property Documents and other materials as may be reasonably required by Lender or required by the Rating Agencies. Borrower acknowledges and agrees that the execution of any documents in connection with Lender’s exercise of the Mezzanine Option in accordance with terms and conditions hereof shall not in itself increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents.directly or
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Mezzanine Option. Borrower acknowledges Without limiting Agent’s or Lenders’ rights to implement a Loan Bifurcation, Agent and agrees that Mortgage Lender and Mezzanine A Lender Lenders shall have the options set forth in Section 11.6 of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively. Borrower shall cooperate with such lenders in such lenders’ exercise, from time to time, of any and all such options in good faith and in a timely manner, which cooperation shall include, but not be limited to, cooperating with respect to all of the actions and items specified and/or referenced in Section 11.6 of each of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively (subject to the limitations set forth therein, mutatis mutandis). Lender shall have the option (the “Mezzanine Option”) right at any time to divide the Loan loan into two one or more mezzanine loansloan(s), provided, that (i) the total loan amounts for such mezzanine loans loan(s) shall equal the then outstanding principal amount of the Loan immediately prior to LenderAgent’s or Lenders’ exercise of the Mezzanine Optionits rights pursuant to this Section 9.4, and (ii) the weighted average interest rate of such mezzanine loans loan(s) immediately after Agent’s or Lenders’ exercise of its rights pursuant to the terms and provisions of this Section 9.4 shall equal the Applicable Interest Rate (except following an Event of Default) Rate, and (iii) the Allocated Loan Amounts so long as an Event of Default shall not be continuing, all prepayments shall be allocated between such mezzanine loans on a made pro rata basisto the Loan(s). Borrower shall cooperate with Agent and Lender in LenderAgent’s or Lenders’ exercise of the Mezzanine Option its rights under this Section 9.4 in good faith and in a timely manner, which such cooperation shall include, but not be limited to, (i) executing such amendments to the Loan Documents and organizational documents Borrower, Mortgage Borrower or any SPE Party’s Organizational Documents as may be reasonably requested by Lender or requested by the Rating Agencies (Agent; provided, that any such amendment however, that, except as otherwise described in this Section 9.4, in no event shall not change any economic or non-economic termthe creation of an additional mezzanine loan(s) (y) increase, including the interest rate or the stated maturity, or otherwise have an adverse effect on Borrower, Guarantor and/or any of their Affiliates or increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents (in each case other than except to a de minimus minimis extent), Borrower’s obligations or (z) decrease, except as provided in clause (ii) to a de minimis extent, Borrower’s rights, under the Loan Documents; provided, however, Borrower acknowledges and agrees that each mezzanine loan shall have its own consent and approval rights independent of the immediately preceding sentence), Loan and neither of these features of a mezzanine loan shall constitute an increase in Borrower’s obligations or a decrease in Borrower’s rights under the Loan Documents; (ii) creating one or more Single Purpose Entities single purpose, bankruptcy remote entities satisfying the requirements of Section 3.1.24 hereof and meeting Rating Agency Criteria (the a “New Mezzanine Borrower”), which such New Mezzanine Borrower mezzanine borrowers shall (A) own, directly or indirectly, one hundred percent (100% %) of the equity ownership interests in Borrower (the “Mezzanine Equity Collateral”), and (B) together with such constituent equity owners of such New Mezzanine Borrower as may be designated by Agent or Lender, execute such customary agreements, instruments and other documents as may be required by Agent or Lender in connection with the mezzanine loan loan(s) (including, without limitation, a promissory note evidencing the each mezzanine loan (a “Mezzanine Loan”) and a pledge and security agreement pledging the Mezzanine Equity Collateral to Lender Agent for the ratable benefit of Lenders as security for the mezzanine loana Mezzanine Loan); and (iii) delivering such opinions, title endorsements, UCC insurance policies, mezzanine endorsements and UCC title insurance to owner’s policies and using commercially reasonable efforts to deliver documents and/or instruments relating to the Property Documents and other materials as may be required by Agent, Lender and Rating Agency Criteria. Notwithstanding anything to the contrary contained herein or in any other Loan Document, and subject to the rights of the Mortgage Lenders under the Mortgage Loan Documents, Borrower hereby acknowledges and agrees that (1) Agent’s and/or Lenders’ may, at their discretion, (x) deem the Loan junior and subordinate to the Mezzanine Loan and (y) without limitation of the foregoing, cause the Mezzanine Equity Collateral to be of a more direct interest in Borrower and any SPE Party than the Pledged Company Interest, (2) Agent, in its capacity as Agent for the benefit of Lenders under the Mezzanine Loan shall be a party to the intercreditor agreement relating to the Mezzanine Loan, and (3) Borrower shall cooperate (and shall (x) cause Mortgage Borrower to cooperate and (y) use commercially reasonable efforts to cause Mortgage Agent to cooperate) in connection with the foregoing (which such cooperation shall include, to the extent required, executing such amendments to the Loan Documents, Mortgage Loan Documents and the organizational documents of such direct or indirect owners of Borrower, in each case, as may be reasonably required by Lender Agent or required by the Rating Agencies. Borrower acknowledges and agrees that the execution of any documents Agencies in connection with Lender’s exercise of the Mezzanine Option in accordance with terms and conditions hereof shall not in itself increase the obligations or decrease the rights of Borrower pursuant to the Loan Documentstherewith).
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Samples: Mezzanine Loan Agreement (Black Creek Diversified Property Fund Inc.)
Mezzanine Option. Borrower acknowledges and agrees that Mortgage Lender and Mezzanine A Lender shall have the options set forth in Section 11.6 of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively. Borrower shall cooperate with such lenders in such lenders’ exercise, from time to time, of any and all such options in good faith and in a timely manner, which cooperation shall include, but not be limited to, cooperating with respect to all of the actions and items specified and/or referenced in Section 11.6 of each of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively (subject to the limitations set forth therein, mutatis mutandis). Lender shall have the option (the “Mezzanine Option”) at any time to divide the Loan into two parts, a mortgage loan and a mezzanine loansloan, provided, that (i) the total loan amounts for such mortgage loan and such mezzanine loans loan shall equal the then outstanding amount of the Loan immediately prior to Lender’s exercise of the Mezzanine Option, and (ii) the weighted average interest rate of such mortgage loan and mezzanine loans loan shall equal the Interest Rate (except following an Event so long as there is no event of Default) and (iii) default or prepayment of principal of the Allocated Loan Amounts shall be allocated between such or mezzanine loans on a pro rata basisloan). Borrower shall cooperate with Lender in Lender’s exercise of the Mezzanine Option in good faith and in a timely manner, which such cooperation shall include, but not be limited to, (i) executing such amendments to the Loan Documents and Borrower or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies (provided, that any such amendment shall not change any economic or non-economic term, including the interest rate or the stated maturity, or otherwise have an adverse effect on Borrower, Guarantor and/or any of their Affiliates or increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents (in each case other than to a de minimus extent), except as provided in clause (ii) of the immediately preceding sentence)Agencies, (ii) creating one or more Single Purpose Entities (the “New Mezzanine Borrower”), which such New Mezzanine Borrower shall (A) own, directly or indirectly, 100% of the equity ownership interests in Borrower (the “Equity Collateral”), and (B) together with such constituent equity owners of such New Mezzanine Borrower as may be designated by Lender, execute such customary agreements, instruments and other documents as may be required by Lender in connection with the mezzanine loan (including, without limitation, a promissory note evidencing the mezzanine loan and a pledge and security agreement pledging the Equity Collateral to Lender as security for the mezzanine loan); and (iii) delivering such opinions, title endorsements and endorsements, UCC title insurance policies and using commercially reasonable efforts to deliver documents and/or instruments relating to the Property Documents and other materials as may be reasonably required by Lender or required by the Rating Agencies. Borrower acknowledges Notwithstanding anything to the contrary contained in this Agreement or the other Loan Documents, other than costs and agrees that expenses which are otherwise the execution of any documents in connection with Lender’s exercise of the Mezzanine Option in accordance with terms and conditions hereof shall not in itself increase the obligations or decrease the rights responsibility of Borrower pursuant to the terms of the Loan Documents., Borrower shall not be responsible for the payment of any costs and expenses incurred in connection with Lender exercising the Mezzanine Option, other than any internal, administrative or clerical cost and expenses incurred by Borrower
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Mezzanine Option. Notwithstanding the foregoing provisions of this Article 7, at any time during the term of the Loan, a constituent party or parties (direct or indirect) of Borrower acknowledges that is not an SPE Component Entity (any such party or parties, collectively, the “Mezzanine Borrower”) shall be permitted to incur mezzanine financing (the “Permitted Mezzanine Financing”) secured by a pledge of Mezzanine Borrower’s direct or indirect equity interests in Borrower (other than the direct equity interests in Borrower owned by any SPE Component Entity), provided, that, the following terms and agrees that Mortgage Lender conditions are each satisfied:
(a) No Event of Default shall have occurred and Mezzanine A be continuing;
(b) Lender shall have the options set forth in Section 11.6 received at least thirty (30) and no more than ninety (90) days prior written notice of the Mortgage Loan Agreement and the Mezzanine A Loan Agreement respectively. Borrower shall cooperate with such lenders in such lenders’ exercise, from time to time, of any and all such options in good faith and in a timely manner, which cooperation shall include, but not be limited to, cooperating with respect to all exercise of the actions and items specified and/or referenced in Section 11.6 of each of the Mortgage Loan Agreement and the proposed Permitted Mezzanine A Loan Agreement respectively (subject to the limitations set forth therein, mutatis mutandis). Lender shall have the option Financing (the “Mezzanine OptionNotice”);
(c) No more than one Permitted Mezzanine Financing may be outstanding at any time to divide given time; Confidential Treatment Requested by BANA XXXX-Xxxx-00131
(d) The principal amount of the Loan into two mezzanine loansproposed Permitted Mezzanine Financing (including, providedwithout limitation, that all earn-out or other advances or negative amortization or similar features contemplated thereunder which would in any way increase the principal amount due thereunder) shall not exceed an amount which, when aggregated with the outstanding principal amount of the Loan, would result in (i) the total loan amounts for such mezzanine loans shall equal the then outstanding amount an LTV in excess of the Loan immediately prior to Lender’s exercise of the Mezzanine Option85%, or (ii) the weighted average a Debt Service Coverage Ratio, calculated on a trailing 12-month basis, less than 1.25 to 1.00;
(e) The Permitted Mezzanine Financing shall bear interest at a fixed rate of such mezzanine loans interest, or if the Permitted Mezzanine Financing shall equal the bear interest at a floating rate of interest, Mezzanine Borrower shall have obtained and shall maintain an Interest Rate Cap Agreement, and such Interest Rate Cap Agreement shall have been collaterally assigned to the Mezzanine Lender in a manner reasonably satisfactory to Lender;
(except following an Event f) The loan term (including any extension terms) of Defaultthe proposed Permitted Mezzanine Financing shall be co-terminus with or longer than the term of the Loan;
(g) The holder of the Permitted Mezzanine Financing (the “Mezzanine Lender”) shall (A) be a Qualified Institutional Lender, (B) represent and warrant to Lender that, as of the date of the funding of the Permitted Mezzanine Financing, it is solvent and not involved in any voluntary or involuntary action or proceeding as debtor under any applicable federal bankruptcy law, or any similar federal or state law, and (iiiC) agree in the Allocated Loan Amounts Mezzanine Intercreditor (defined below) that any subsequent transfer of the Permitted Mezzanine Financing shall be allocated between such mezzanine loans on to a pro rata basis. Borrower Qualified Institutional Lender;
(h) Mezzanine Lender shall cooperate with have delivered to Lender in (for execution by Lender’s exercise of the ) an intercreditor agreement executed by Mezzanine Option in good faith and in a timely mannerLender, which such cooperation intercreditor agreement shall includebe in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies (such intercreditor agreement, but not be limited to, the “Mezzanine Intercreditor”);
(i) executing Borrower shall deliver to Lender, at Borrower’s sole cost and expense, a revised and/or updated substantive non-consolidation opinion reasonably acceptable to Lender and acceptable to the Rating Agencies reflecting the Permitted Mezzanine Financing;
(j) Borrower, at Borrower’s sole cost and expense, shall provide to Lender satisfactory (i.e., showing no Liens other than Permitted Encumbrances) UCC searches, together with tax lien, bankruptcy, judgment and litigation searches with respect to the Property, Borrower and Borrower Principal in the State in which the Property is located, in Delaware and in the jurisdictions where each such Person has its principal place of business;
(k) Borrower shall have paid or reimbursed Lender for all reasonable, out of pocket costs and expenses incurred by Lender (including, without limitation, reasonable attorneys’ fees and disbursements and any costs, expenses and/or fees of the Rating Agencies) in connection with the Permitted Mezzanine Financing and Borrower shall have paid or shall have caused Mezzanine Borrower to pay all title premiums, recording charges, filing fees, taxes or other expenses payable in connection with the Permitted Mezzanine Financing;
(1) Borrower shall execute such amendments to the Loan Documents and organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies (provided, that any such amendment shall not change any economic or non-economic term, including the interest rate or the stated maturity, or otherwise have an adverse effect on Borrower, Guarantor and/or any of their Affiliates or increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents (in each case other than to a de minimus extent), except as provided in clause (ii) of the immediately preceding sentence), (ii) creating one or more Single Purpose Entities (the “New Mezzanine Borrower”), which such New Mezzanine Borrower shall (A) own, directly or indirectly, 100% of the equity ownership interests in Borrower (the “Equity Collateral”), and (B) together with such constituent equity owners of such New Mezzanine Borrower as may be designated by Lender, execute such customary agreements, instruments and other documents as may be required by Lender in connection with the mezzanine loan (including, without limitation, a promissory note evidencing the mezzanine loan and a pledge and security agreement pledging the Equity Collateral to Lender as security for the mezzanine loan); and (iii) delivering such opinions, title endorsements and UCC title insurance policies and using commercially reasonable efforts to deliver documents and/or instruments relating an amendment to the Property Documents terms hereof Confidential Treatment Requested by BANA XXXX-Xxxx-00132 such that property level expenses are reserved and other materials as may be reasonably required paid by Lender or required by the Rating Agencies. Borrower acknowledges and agrees that the execution of any documents in connection with Lender’s exercise of the Mezzanine Option in accordance with terms the Annual Budget approved hereunder (provided no Event of Default has occurred and conditions hereof shall not in itself increase the obligations or decrease the rights of Borrower is continuing) pursuant to an amendment to the Loan Documents.cash management provisions set forth in Article 10 hereof;
Appears in 1 contract
Samples: Loan Agreement (Sothebys)