Partial Release – Expansion. (a) Provided no Event of Default shall have occurred and remain uncured and provided that the intended use, at the time of the transfer of the Expansion Parcel is not for purposes incompatible with the use and operation of the applicable Individual Property as a dry and/or cold storage warehouse facility (it being agreed that the use of the Expansion Parcel as a dry and/or cold storage warehouse facility is not incompatible with the use and operation of the remainder of the applicable Individual Property as a dry and/or cold storage warehouse facility), Borrower shall have the right at any time and from time to time prior to the Maturity Date to obtain a release of the lien of the Mortgage (and related Loan Documents) as to an Expansion Parcel upon satisfaction of the following conditions precedent: (i) Borrower shall provide Lender not less than thirty (30) days’ notice (or a shorter period of time if permitted by Lender in its sole discretion) specifying the date (the “Expansion Date”) on which the partial release is to occur provided, however, that Borrower may postpone the Expansion Date from time to time as long as the extended date is at least ten (10) Business Days after Notice of such extension; (ii) Lender shall have received an Officer’s Certificate certifying (A) that the proposed use of the Expansion Parcel would not be incompatible with a dry and/or cold storage warehouse facility on the remainder of the applicable Individual Property, (B) that the excess of Gross Revenue over Operating Expenses for the Individual Property immediately after the proposed release after taking into account the proposed use of the Expansion Parcel will not be less than the excess of Gross Revenue over Operating Expenses for the Individual Property immediately before the proposed release and (C) that the proposed use of the Expansion Parcel will not have a material adverse effect on the income and expense at the Individual Property, together with evidence reasonably acceptable to Lender in support of such conclusions; (iii) Borrower shall deliver to Lender an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, among other things, that if a Securitization of any portion of the Loan has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the partial release pursuant to this Section 11.30; (iv) Borrower shall have delivered to Lender evidence that Borrower has complied with all requirements of and obtained all approvals required under any Leases with Major Tenants and the Operating Agreements applicable to the release of the Expansion Parcel and that the partial release does not violate any of the provisions of any Leases with Major Tenants and the Operating Agreements provided, however, that an Officer’s Certificate to that effect shall be sufficient evidence of such compliance and obtaining of such approvals as to Leases which are not Major Leases; (v) Borrower shall have delivered to Lender (A) at Borrower’s option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State), indicating that the Expansion Parcel has been legally subdivided for zoning lot purposes from the remainder of the Individual Property pursuant to a zoning lot subdivision in accordance with applicable law, (B) at Borrower’s option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State), indicating that the balance of the Individual Property separately conforms to and is in material compliance with all applicable Legal Requirements and constitutes one or more separate tax lots, (C) a certificate from an architect or engineer (licensed to practice in the State and reasonably acceptable to Lender) to the effect that the Expansion Parcel is not necessary for the use of the remainder of the Individual Property in the manner in which it is then being used, including, without limitation, for support, access, driveways, parking, utilities or drainage flows (after giving effect to any easements therefor reserved over the Expansion Parcel for the benefit of the remainder of the Individual Property) and (D) an Officer’s Certificate with supporting documentation indicating that either (y) sufficient parking remains on the remainder of the Individual Property to comply with all Leases of such remainder and with all Operating Agreements and which is adequate for the proper use and enjoyment of the balance of the Individual Property or (z) reservations of parking (in favor of such remainder) in the Expansion Parcel are sufficient (when added to parking otherwise available to the remainder) to comply with all Leases of such remainder and with all Operating Agreements and which are adequate for the proper use and enjoyment of the remainder of the Individual Property; (vi) Lender shall have received a Officer’s Certificate certifying that any improvements proposed to be built on the Expansion Parcel will not adversely affect the operation of the remainder of the Individual Property (after giving effect to any easements reserved or granted for the benefit of such remainder or the Expansion Parcel); (vii) Lender shall have received an Appraisal of the Individual Property (using an income method of valuation (it being agreed that in conducting such valuation any income that might be derived from the sale or subsequent use of such Expansion Parcel shall not be included)) dated no more than ninety (90) days prior to the proposed Expansion Date by an appraiser (which appraiser shall be reasonably acceptable to Lender), indicating an appraised value of the Individual Property after the release, both before and after construction of improvements to be built on the Expansion Parcel, equal to or greater than the greater of (y) one hundred percent (100%) of the value of such Individual Property immediately prior to the release or (z) one hundred percent (100%) of the Allocated Loan Amount for such Individual Property on the Expansion Date; (viii) Borrower shall have delivered a metes and bounds description of the Expansion Parcel and a survey of the Expansion Parcel and the remainder of the Individual Property which would be standard in commercial lending transactions; (ix) Borrower shall have delivered to Lender on the date of the release an endorsement to the policy or policies of title insurance insuring the Mortgage on such Individual Property reflecting the release and (A) insuring Lender’s interest in any easements created in connection with the Release and (B) confirming no change in the priority of the Mortgage on the remainder of the Individual Property or in the amount of the insurance or the coverage under the policy or policies; (x) Borrower shall deliver to Lender an Officer’s Certificate certifying that the requirements set forth in this Section 11.30 have been satisfied; and (xi) Borrower shall pay all out-of-pocket costs and expenses of Lender incurred in connection with the partial release, including Lender’s reasonably attorneys’ fees and expenses. (b) If Borrower shall provide a Letter of Credit to Lender on the Expansion Date as additional security for the Loan, the amount of the Loan equal to the amount of the Letter of Credit shall be added to the appraised value of the remainder of the Property after the release for the purposes of doing the comparison in Section l1.30(a)(vii). (c) If Borrower has elected to release the Expansion Parcel and the requirements of this Section 11.30 have been satisfied, the Expansion Parcel shall be released from the Lien of the Mortgage (and related Loan Documents) and Lender shall consent and subordinate the Lien of the Mortgage thereto. In connection with the release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Expansion Date (or such shorter time as is reasonably acceptable to Lender), a release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Property is located and shall contain standard provisions protecting the rights of a releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release, together with an Officer’s Certificate certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will effect such release in accordance with the terms of this Agreement. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien of the Mortgage, including Lender’s reasonable attorneys’ fees. Borrower shall cause title to the Expansion Parcel so released from the Lien of the Mortgage to be transferred to and held by a Person other than Borrower.
Appears in 1 contract
Partial Release – Expansion. (a) Provided no Event of Default shall have occurred and remain uncured and provided that the intended use, at the time of the Borrower desires to transfer of the Expansion Parcel is not for retail purposes incompatible compatible with the use and operation of the applicable Individual Property as a dry and/or cold storage warehouse facility (it being agreed that the use of the Expansion Parcel as a dry and/or cold storage warehouse facility is not incompatible with the use and operation of the remainder of the applicable Individual Property as a dry and/or cold storage warehouse facility)Super-Regional Shopping Center, Borrower shall have the right at any time and from time to time prior to the Maturity Date to obtain a release of the lien of the Mortgage (and related Loan Documents) as to an Expansion Parcel and to modify the Ground Lease or assign a portion thereof so as to exclude the Expansion Parcel from the premises demised thereby upon satisfaction of the following conditions precedent:
(i) Borrower shall provide Lender not less than thirty (30) days’ days notice (or a shorter period of time if permitted by Lender in its sole discretion) specifying the date (the “"Expansion Date”") on which the partial release is to occur provided, however, that Borrower may postpone the Expansion Date from time to time as long as the extended date is at least ten (10) Business Days after Notice of such extension;
(ii) Lender shall have received an Officer’s 's Certificate certifying (A) that as to the proposed use of the Expansion Parcel would not be incompatible Parcel, its compatibility with a dry and/or cold storage warehouse facility Super-Regional Shopping Center and its effects on the operation and use of the remainder of the applicable Individual Property, Property and (B) that indicating the excess of Gross Revenue over and Operating Expenses for the Individual Property both immediately before and immediately after the proposed release after taking into account the proposed use of the Expansion Parcel will not be less than the excess of Gross Revenue over Operating Expenses for the Individual Property immediately before the proposed release and (C) that the proposed use of the Expansion Parcel will not have a material adverse effect its effects on the income and expense at the Individual Property, together with evidence reasonably acceptable to Lender in support of such conclusions;
(iii) Borrower shall deliver to Lender an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, among other things, that if a Securitization of any portion of the Loan has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “"real estate mortgage investment conduit” " within the meaning of Section 860D of the Code as a result of the partial release pursuant to this Section 11.3011.29;
(iv) Borrower shall have delivered to Lender evidence that Borrower has complied with all requirements of and obtained all approvals required under any Leases with Major Tenants and the Operating Agreements applicable to the release of the Expansion Parcel and that the partial release does not violate any of the provisions of any the Leases with Major Tenants and the Operating Agreements including, without limitation, provisions relating to the availability of parking at the Property provided, however, that an Officer’s 's Certificate to that effect shall be sufficient evidence of such compliance and obtaining of such approvals as to Leases which are not Major Leases;
(v) Borrower shall have delivered to Lender (A) at Borrower’s 's option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State), ) indicating that the Expansion Parcel has been legally subdivided for zoning lot purposes from the remainder of the Individual Property pursuant to a zoning lot subdivision in accordance with applicable law, (B) at Borrower’s 's option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State), ) indicating that the balance of the Individual Property separately conforms to and is in material compliance with all applicable Legal Requirements and constitutes one or more a separate tax lotslot(s), (C) a certificate from an architect or engineer (licensed to practice in the State and reasonably acceptable to Lender) Lender to the effect that the Expansion Parcel is not necessary for the use uses of the remainder of the Individual Property in the manner in which it is then being usedProperty, including, without limitation, for support, access, driveways, parking, utilities or utilities, drainage flows or any other purpose, (after giving effect to any easements therefor reserved over the Expansion Parcel for the benefit of the remainder of the Individual Property) and (D) an Officer’s 's Certificate with supporting documentation indicating that either (y) sufficient parking remains on the remainder of the Individual Property to comply with all Leases of such remainder and with all Operating Agreements and which is adequate for the proper use and enjoyment of the balance of the Individual Property or (z) reservations of parking (in favor of such remainder) in the Expansion Parcel are sufficient (when added to parking otherwise available to the remainder) to comply with all Leases of such remainder and with all Operating Agreements and which are adequate for the proper use and enjoyment of the remainder of the Individual Property;
(vi) Lender shall have received a Officer’s Certificate certifying that any improvements proposed to be built on the Expansion Parcel will not adversely affect the operation of the remainder of the Individual Property (after giving effect to any easements reserved or granted for the benefit of such remainder or the Expansion Parcel);
(vii) Lender shall have received an Appraisal of the Individual Property (using an income method of valuation (it being agreed that in conducting such valuation any income that might be derived from the sale or subsequent use of such Expansion Parcel shall not be included)) dated no more than ninety (90) days prior to the proposed Expansion Date by an appraiser (which appraiser shall be reasonably acceptable to Lender), indicating an appraised value of the Individual Property after the release, both before and after construction of improvements to be built on the Expansion Parcel, equal to or greater than the greater of (y) one hundred percent (100%) of the value of such Individual Property immediately prior to the release or (z) one hundred percent (100%) of the Allocated Loan Amount for such Individual Property on the Expansion Date;
(viii) Borrower shall have delivered a metes and bounds description of the Expansion Parcel and a survey of the Expansion Parcel and the remainder of the Individual Property which would be standard in commercial lending transactions;
(ix) Borrower shall have delivered to Lender on the date of the release an endorsement to the policy or policies of title insurance insuring the Mortgage on such Individual Property reflecting the release and (A) insuring Lender’s interest in any easements created in connection with the Release and (B) confirming no change in the priority of the Mortgage on the remainder of the Individual Property or in the amount of the insurance or the coverage under the policy or policies;
(x) Borrower shall deliver to Lender an Officer’s Certificate certifying that the requirements set forth in this Section 11.30 have been satisfied; and
(xi) Borrower shall pay all out-of-pocket costs and expenses of Lender incurred in connection with the partial release, including Lender’s reasonably attorneys’ fees and expenses.
(b) If Borrower shall provide a Letter of Credit to Lender on the Expansion Date as additional security for the Loan, the amount of the Loan equal to the amount of the Letter of Credit shall be added to the appraised value of the remainder of the Property after the release for the purposes of doing the comparison in Section l1.30(a)(vii).
(c) If Borrower has elected to release the Expansion Parcel and the requirements of this Section 11.30 have been satisfied, the Expansion Parcel shall be released from the Lien of the Mortgage (and related Loan Documents) and Lender shall consent and subordinate the Lien of the Mortgage thereto. In connection with the release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Expansion Date (or such shorter time as is reasonably acceptable to Lender), a release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Property is located and shall contain standard provisions protecting the rights of a releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release, together with an Officer’s Certificate certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will effect such release in accordance with the terms of this Agreement. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien of the Mortgage, including Lender’s reasonable attorneys’ fees. Borrower shall cause title to the Expansion Parcel so released from the Lien of the Mortgage to be transferred to and held by a Person other than Borrower.
Appears in 1 contract
Partial Release – Expansion. (a) Provided no Event of Default shall have occurred and and. remain uncured and provided that the intended use, at the time of the transfer of the Expansion Parcel is not for purposes incompatible with the use and operation of the applicable Individual Property as a dry and/or cold storage warehouse facility (it being agreed that the use of the Expansion Parcel as a dry and/or cold storage warehouse facility is not incompatible with the use and operation of the remainder of the applicable Individual Property as a dry and/or cold storage warehouse facility), Borrower shall have the right at any time and from time to time prior to the Maturity Date to obtain a release of the lien of the Mortgage (and related Loan Documents) as to an Expansion Parcel upon satisfaction of the following conditions precedent:
(i) Borrower shall provide Lender not less than thirty (30) days’ notice (or a shorter period of time if permitted by Lender in its sole discretion) specifying the date (the “Expansion Date”) on which the partial release is to occur provided, however, that Borrower may postpone the Expansion Date from time to time as long as the extended date is at least ten (10) Business Days after Notice of such extension;
(ii) Lender shall have received an Officer’s Certificate certifying (A) that the proposed use of the Expansion Parcel would not be incompatible with a dry and/or cold storage warehouse facility on the remainder of the applicable Individual Property, (B) that the excess of Gross Revenue over Operating Expenses for the Individual Property immediately after the proposed release after taking into account the proposed use of the Expansion Parcel will not be less than the excess of Gross Revenue over Operating Expenses for the Individual Property immediately before the proposed release and (C) that the proposed use of the Expansion Parcel will not have a material adverse effect on the income and expense at the Individual Property, together with evidence reasonably acceptable to Lender in support of such conclusions;
(iii) Borrower shall deliver to Lender an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, among other things, that if a Securitization of any portion of the Loan has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the partial release pursuant to this Section 11.30;
(iv) Borrower shall have delivered to Lender evidence that Borrower has complied with all requirements of and obtained all approvals required under any Leases with Major Tenants and the Operating Agreements applicable to the release of the Expansion Parcel and that the partial release does not violate any of the provisions of any Leases with Major Tenants and the Operating Agreements provided, however, that an Officer’s Certificate to that effect shall be sufficient evidence of such compliance and obtaining of such approvals as to Leases which are not Major Leases;
(v) Borrower shall have delivered to Lender (A) at Borrower’s option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State), indicating that the Expansion Parcel has been legally subdivided for zoning lot purposes from the remainder of the Individual Property pursuant to a zoning lot subdivision in accordance with applicable law, (B) at Borrower’s option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State), indicating that the balance of the Individual Property separately conforms to and is in material compliance with all applicable Legal Requirements and constitutes one or more separate tax lots, (C) a certificate from an architect or engineer (licensed to practice in the State and reasonably acceptable to Lender) to the effect that the Expansion Parcel is not necessary for the use of the remainder of the Individual Property in the manner in which it is then being used, including, without limitation, for support, access, driveways, parking, utilities or drainage flows (after giving effect to any easements therefor reserved over the Expansion Parcel for the benefit of the remainder of the Individual Property) and (D) an Officer’s Certificate with supporting documentation indicating that either (y) sufficient parking remains on the remainder of the Individual Property to comply with all Leases of such remainder and with all Operating Agreements and which is adequate for the proper use and enjoyment of the balance of the Individual Property or (z) reservations of parking (in favor of such remainder) in the Expansion Parcel are sufficient (when added to parking otherwise available to the remainder) to comply with all Leases of such remainder and with all Operating Agreements and which are adequate for the proper use and enjoyment of the remainder of the Individual Property;
(vi) Lender shall have received a Officer’s Certificate certifying that any improvements proposed to be built on the Expansion Parcel will not adversely affect the operation of the remainder of the Individual Property (after giving effect to any easements reserved or granted for the benefit of such remainder or the Expansion Parcel);
(vii) Lender shall have received an Appraisal of the Individual Property (using an income method of valuation (it being agreed that in conducting such valuation any income that might be derived from the sale or subsequent use of such Expansion Parcel shall not be included)) dated no more than ninety (90) days prior to the proposed Expansion Date by an appraiser (which appraiser shall be reasonably acceptable to Lender), indicating an appraised value of the Individual Property after the release, both before and after construction of improvements to be built on the Expansion Parcel, equal to or greater than the greater of (y) one hundred percent (100%) of the value of such Individual Property immediately prior to the release or (z) one hundred percent (100%) of the Allocated Loan Amount for such Individual Property on the Expansion Date;
(viii) Borrower shall have delivered a metes and bounds description of the Expansion Parcel and a survey of the Expansion Parcel and the remainder of the Individual Property which would be standard in commercial lending transactions;
(ix) Borrower shall have delivered to Lender on the date of the release an endorsement to the policy or policies of title insurance insuring the Mortgage on such Individual Property reflecting the release and (A) insuring Lender’s interest in any easements created in connection with the Release and (B) confirming no change in the priority of the Mortgage on the remainder of the Individual Property or in the amount of the insurance or the coverage under the policy or policies;
(x) Borrower shall deliver to Lender an Officer’s Certificate certifying that the requirements set forth in this Section 11.30 have been satisfied; and
(xi) Borrower shall pay all out-of-pocket costs and expenses of Lender incurred in connection with the partial release, including Lender’s reasonably attorneys’ fees and expenses.
(b) If Borrower shall provide a Letter of Credit to Lender on the Expansion Date as additional security for the Loan, the amount of the Loan equal to the amount of the Letter of Credit shall be added to the appraised value of the remainder of the Property after the release for the purposes of doing the comparison in Section l1.30(a)(vii11.30(a)(vii).
(c) If if Borrower has elected to release the Expansion Parcel and the requirements of this Section 11.30 have been satisfied, the Expansion Parcel shall be released from the Lien of the Mortgage (and related Loan Documents) and Lender shall consent and subordinate the Lien of the Mortgage thereto. In connection with the release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Expansion Date (or such shorter time as is reasonably acceptable to Lender), a release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Property is located and shall contain standard provisions protecting the rights of a releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release, together with an Officer’s Certificate certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will effect such release in accordance with the terms of this Agreement. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien of the Mortgage, including Lender’s reasonable attorneys’ fees. Borrower shall cause title to the Expansion Parcel so released from the Lien of the Mortgage to be transferred to and held by a Person other than Borrower.
Appears in 1 contract
Partial Release – Expansion. (a) Provided no Event of Default shall have occurred and remain uncured and provided that the intended use, at the time of the transfer of the Expansion Parcel is not for purposes incompatible with the use and operation of the applicable Individual Property as a dry and/or cold storage warehouse facility (it being agreed that the use of the Expansion Parcel as a dry and/or cold storage warehouse facility is not incompatible with the use and operation of the remainder of the applicable Individual Property as a dry and/or cold storage warehouse facility), Borrower shall have the right at any time and from time to time prior to the Maturity Date to obtain a release of the lien of the Mortgage (and related Loan Documents) as to an Expansion Parcel upon satisfaction of the following conditions precedent:
(i) Borrower shall provide Lender not less than thirty (30) days’ notice (or a shorter period of time if permitted by Lender in its sole discretion) specifying the date (the “Expansion Date”) on which the partial release is to occur provided, however, that Borrower may postpone the Expansion Date from time to time as long as the extended date is at least ten (10) Business Days after Notice of such extension;
(ii) Lender shall have received an Officer’s Certificate certifying (A) that the proposed use of the Expansion Parcel would not be incompatible with a dry and/or cold storage warehouse facility on the remainder of the applicable Individual Property, (B) that the excess of Gross Revenue over Operating Expenses for the Individual Property immediately after the proposed release after taking into account the proposed use of the Expansion Parcel will not be less than the excess of Gross Revenue over Operating Expenses for the Individual Property immediately before the proposed release and (C) that the proposed use of the Expansion Parcel will not have a material adverse effect on the income and expense at the Individual Property, together with evidence reasonably acceptable to Lender in support of such conclusions;
(iii) Borrower shall deliver to Lender an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, among other things, that if a Securitization of any portion of the Loan has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the partial release pursuant to this Section 11.30;
(iv) Borrower shall have delivered to Lender evidence that Borrower has complied with all requirements of and obtained all approvals required under any Leases with Major Tenants and the Operating Agreements applicable to the release of the Expansion Parcel and that the partial release does not violate any of the provisions of any Leases with Major Tenants and the Operating Agreements provided, however, that an Officer’s Certificate to that effect shall be sufficient evidence of such compliance and obtaining of such approvals as to Leases which are not Major Leases;
(v) Borrower shall have delivered to Lender (A) at Borrower’s option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State), indicating that the Expansion Parcel has been legally subdivided for zoning lot purposes from the remainder of the Individual Property pursuant to a zoning lot subdivision in accordance with applicable law, (B) at Borrower’s option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State), indicating that the balance of the Individual Property separately conforms to and is in material compliance with all applicable Legal Requirements and constitutes one or more separate tax lots, (C) a certificate from an architect or engineer (licensed to practice in the State and reasonably acceptable to Lender) to the effect that the Expansion Parcel is not necessary for the use of the remainder of the Individual Property in the manner in which it is then being used, including, without limitation, for support, access, driveways, parking, utilities or drainage flows (after giving effect to any easements therefor reserved over the Expansion Parcel for the benefit of the remainder of the Individual Property) and (D) an Officer’s Certificate with supporting documentation indicating that either (y) sufficient parking remains on the remainder of the Individual Property to comply with all Leases of such remainder and with all Operating Agreements and which is adequate for the proper use and enjoyment of the balance of the Individual Property or (z) reservations of parking (in favor of such remainder) in the Expansion Parcel are sufficient (when added to parking otherwise available to the remainder) to comply with all Leases of such remainder and with all Operating Agreements and which are adequate for the proper use and enjoyment of the remainder of the Individual Property;
(vi) Lender shall have received a Officer’s Certificate certifying that any improvements proposed to be built on the Expansion Parcel will not adversely affect the operation of the remainder of the Individual Property (after giving effect to any easements reserved or granted for the benefit of such remainder or the Expansion Parcel);
(vii) Lender shall have received an Appraisal of the Individual Property (using an income method of valuation (it being agreed that in conducting such valuation any income that might be derived from the sale or subsequent use of such Expansion Parcel shall not be included)) dated no more than ninety (90) days prior to the proposed Expansion Date by an appraiser (which appraiser shall be reasonably acceptable to Lender), indicating an appraised value of the Individual Property after the release, both before and after construction of improvements to be built on the Expansion Parcel, equal to or greater than the greater of (y) one hundred percent (100%) of the value of such Individual Property immediately prior to the release or (z) one hundred percent (100%) of the Allocated Loan Amount for such Individual Property on the Expansion Date;
(viii) Borrower shall have delivered a metes and bounds description of the Expansion Parcel and a survey of the Expansion Parcel and the remainder of the Individual Property which would be standard in commercial lending transactions;
(ix) Borrower shall have delivered to Lender on the date of the release an endorsement to the policy or policies of title insurance insuring the Mortgage on such Individual Property reflecting the release and (A) insuring Lender’s interest in any easements created in connection with the Release and (B) confirming no change in the priority of the Mortgage on the remainder of the Individual Property or in the amount of the insurance or the coverage under the policy or policies;
(x) Borrower shall deliver to Lender an Officer’s Certificate certifying that the requirements set forth in this Section 11.30 have been satisfied; and
(xi) Borrower shall pay all out-of-pocket costs and expenses of Lender incurred in connection with the partial release, including Lender’s reasonably attorneys’ fees and expenses.
(b) If Borrower shall provide a Letter of Credit to Lender on the Expansion Date as additional security for the Loan, the amount of the Loan equal to the amount of the Letter of Credit shall be added to the appraised value of the remainder of the Property after the release for the purposes of doing the comparison in Section l1.30(a)(vii11 .30(a)(vii).
(c) If Borrower has elected to release the Expansion Parcel and the requirements of this Section 11.30 have been satisfied, the Expansion Parcel shall be released from the Lien of the Mortgage (and related Loan Documents) and Lender shall consent and subordinate the Lien of the Mortgage thereto. In connection with the release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Expansion Date (or such shorter time as is reasonably acceptable to Lender), a release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Property is located and shall contain standard provisions protecting the rights of a releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release, together with an Officer’s Certificate certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will effect such release in accordance with the terms of this Agreement. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien of the Mortgage, including Lender’s reasonable attorneys’ fees. Borrower shall cause title to the Expansion Parcel so released from the Lien of the Mortgage to be transferred to and held by a Person other than Borrower.
Appears in 1 contract
Partial Release – Expansion. (a) Provided no Event of Default shall have occurred and remain uncured and provided that the intended use, at the time of the transfer of the Expansion Parcel is not for purposes incompatible with the use and operation of the applicable Individual Property as a dry and/or cold storage warehouse facility (it being agreed that that, except with respect to the Carthage Property, the use of the Expansion Parcel as a dry and/or cold storage warehouse facility is not incompatible with the use and operation of the remainder of the applicable Individual Property as a dry and/or cold storage warehouse facility), Borrower shall have the right at any time and from time to time prior to the Maturity Date to obtain a release of the lien of the Mortgage (and related Loan Documents) as to an Expansion Parcel upon satisfaction of the following conditions precedent:
(i) Borrower shall provide Lender not less than thirty (30) days’ notice (or a shorter period of time if permitted by Lender in its sole discretion) specifying the date (the “Expansion Date”) on which the partial release is to occur provided, however, that Borrower may postpone the Expansion Date from time to time as long as the extended date is at least ten (10) Business Days after Notice of such extension;
(ii) Lender shall have received an Officer’s Certificate certifying (A) that the proposed use of the Expansion Parcel would not be incompatible with a dry and/or cold storage warehouse facility on the remainder of the applicable Individual Property, (B) that the excess of Gross Revenue over Operating Expenses for the Individual individual Property immediately after the proposed release after taking into account the proposed use of the Expansion Parcel will not be less than the excess of Gross Revenue over Operating Expenses for the Individual Property immediately before the proposed release and (C) that the proposed use of the Expansion Parcel will not have a material adverse effect on the income and expense at the Individual Property, together with evidence reasonably acceptable to Lender in support of such conclusions;
(iii) Borrower shall deliver to Lender an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, among other things, that if a Securitization of any portion of the Loan has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the partial release pursuant to this Section 11.30;
(iv) Borrower shall have delivered to Lender evidence that Borrower has complied with all requirements of and obtained all approvals required under any Leases with Major Tenants and the Operating Agreements applicable to the release of the Expansion Parcel and that the partial release does not violate any of the provisions of any Leases with Major Tenants and the Operating Agreements provided, however, that an Officer’s Certificate to that effect shall be sufficient evidence of such compliance and obtaining of such approvals as to Leases which are not Major Leases;
(v) Borrower shall have delivered to Lender (A) at Borrower’s option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State), indicating that the Expansion Parcel has been legally subdivided for zoning lot purposes from the remainder of the Individual Property pursuant to a zoning lot subdivision in accordance with applicable law, (B) at Borrower’s option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State), indicating that the balance of the Individual Property separately conforms to and is in material compliance with all applicable Legal Requirements and constitutes one or more separate tax lots, (C) a certificate from an architect or engineer (licensed to practice in the State and reasonably acceptable to Lender) to the effect that the Expansion Parcel is not necessary for the use of the remainder of the Individual Property in the manner in which it is then being used, including, without limitation, for support, access, driveways, parking, utilities or drainage flows (after giving effect to any easements therefor reserved over the Expansion Parcel for the benefit of the remainder of the Individual Property) and (D) an Officer’s Certificate with supporting documentation indicating that either (y) sufficient parking remains on the remainder of the Individual Property to comply with all Leases of such remainder and with all Operating Agreements and which is adequate for the proper use and enjoyment of the balance of the Individual Property or (z) reservations of parking (in favor of such remainder) in the Expansion Parcel are sufficient (when added to parking otherwise available to the remainder) to comply with all Leases of such remainder and with all Operating Agreements and which are adequate for the proper use and enjoyment of the remainder of the Individual Property;
(vi) Lender shall have received a Officer’s Certificate certifying that any improvements proposed to be built on the Expansion Parcel will not adversely affect the operation of the remainder of the Individual Property (after giving effect to any easements reserved or granted for the benefit of such remainder or the Expansion Parcel);
(vii) Lender shall have received an Appraisal of the Individual Property (using an income method of valuation (it being agreed that in conducting such valuation any income that might be derived from the sale or subsequent use of such Expansion Parcel shall not be included)) dated no more than ninety (90) days prior to the proposed Expansion Date by an appraiser (which appraiser shall be reasonably acceptable to Lender), indicating an appraised value of the Individual Property after the release, both before and after construction of improvements to be built on the Expansion Parcel, equal to or greater than the greater of (y) one hundred percent (100%) of the value of such Individual Property immediately prior to the release or (z) one hundred percent (100%) of the Allocated Loan Amount for such Individual Property on the Expansion Date;
(viii) Borrower shall have delivered a metes and bounds description of the Expansion Parcel and a survey of the Expansion Parcel and the remainder of the Individual Property which would be standard in commercial lending transactions;
(ix) Borrower shall have delivered to Lender on the date of the release an endorsement to the policy or policies of title insurance insuring the Mortgage on such Individual Property reflecting the release and (A) insuring Lender’s interest in any easements created in connection with the Release and (B) confirming no change in the priority of the Mortgage on the remainder of the Individual Property or in the amount of the insurance or the coverage under the policy or policies;
(x) Borrower shall deliver to Lender an Officer’s Certificate certifying that the requirements set forth in this Section 11.30 have been satisfied; and
(xi) Borrower shall pay all out-of-pocket costs and expenses of Lender incurred in connection with the partial release, including Lender’s reasonably attorneys’ fees and expenses.
(b) If Borrower shall provide a Letter of Credit to Lender on the Expansion Date as additional security for the Loan, the amount of the Loan equal to the amount of the Letter of Credit shall be added to the appraised value of the remainder of the Property after the release for the purposes of doing the comparison in Section l1.30(a)(vii11.30(a)(vii).
(c) If Borrower has elected to release the Expansion Parcel and the requirements of this Section 11.30 have been satisfied, the Expansion Parcel shall be released from the Lien of the Mortgage (and related Loan Documents) and Lender shall consent and subordinate the Lien of the Mortgage thereto. In connection with the release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Expansion Date (or such shorter time as is reasonably acceptable to Lender), a release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction Jurisdiction in which the Property is located and shall contain standard provisions protecting the rights of a releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release, together with an Officer’s Certificate certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will effect such release in accordance with the terms of this Agreement. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien of the Mortgage, including Lender’s reasonable attorneys’ fees. Borrower shall cause title to the Expansion Parcel so released from the Lien of the Mortgage to be transferred to and held by a Person other than Borrower.
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Partial Release – Expansion. (a) Provided no Event of Default shall have occurred and remain uncured and provided that the intended use, at the time of the transfer of the Expansion Parcel is not for purposes incompatible with the use and operation of the applicable Individual Property as a dry and/or cold storage warehouse facility (it being agreed that the use of the Expansion Parcel as a dry and/or cold storage warehouse facility is not incompatible with the use and operation of the remainder of the applicable Individual Property as a dry and/or cold storage warehouse facility), Borrower shall have the right at any time and from time to time prior to the Maturity Date to obtain a release of the lien of the Mortgage (and related Loan Documents) as to an Expansion Parcel upon satisfaction of the following conditions precedent:
(i) Borrower shall provide Lender not less than thirty (30) days’ notice (or a shorter period of time if permitted by Lender in its sole discretion) specifying the date (the “Expansion Date”) on which the partial release is to occur provided, however, that Borrower may postpone the Expansion Date from time to time as long as the extended date is at least ten (10) Business Days after Notice of such extension;
(ii) Lender shall have received an Officer’s Certificate certifying (A) that the proposed use of the Expansion Parcel would not be incompatible with a dry and/or cold storage warehouse facility on the remainder of the applicable Individual Property, (B) that the excess of Gross Revenue over Operating Expenses for the Individual Property immediately after the proposed release after taking into account the proposed use of the Expansion Parcel will not be less than the excess of Gross Revenue over Operating Expenses for the Individual Property immediately before the proposed release and (C) that the proposed use of the Expansion Parcel will not have a material adverse effect on the income and expense at the Individual Property, together with evidence reasonably acceptable to Lender in support of such conclusions;
(iii) Borrower shall deliver to Lender an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, among other things, that if a Securitization of any portion of the Loan has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the partial release pursuant to this Section 11.30;
(iv) Borrower shall have delivered to Lender evidence that Borrower has complied with all requirements of and obtained all approvals required under any Leases with Major Tenants and the Operating Agreements applicable to the release of the Expansion Parcel and that the partial release does not violate any of the provisions of any Leases with Major Tenants and the Operating Agreements provided, however, that an Officer’s Certificate to that effect shall be sufficient evidence of such compliance and obtaining of such approvals as to Leases which are not Major Leases;
(v) Borrower shall have delivered to Lender (A) at Borrower’s option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State), indicating that the Expansion Parcel has been legally subdivided for zoning lot purposes from the remainder of the Individual Property pursuant to a zoning lot subdivision in accordance with applicable law, (B) at Borrower’s option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State), indicating that the balance of the Individual Property separately conforms to and is in material compliance with all applicable Legal Requirements and constitutes one or more separate tax lots, (C) a certificate from an architect or engineer (licensed to practice in the State and reasonably acceptable to Lender) to the effect that the Expansion Parcel is not necessary for the use of the remainder of the Individual Property in the manner in which it is then being used, including, without limitation, for support, access, driveways, parking, utilities or drainage flows (after giving effect to any easements therefor reserved over the Expansion Parcel for the benefit of the remainder of the Individual Property) and (D) an Officer’s Certificate with supporting documentation indicating that either (y) sufficient parking remains on the remainder of the Individual Property to comply with all Leases of such remainder and with all Operating Agreements and which is adequate for the proper use and enjoyment of the balance of the Individual Property or (z) reservations of parking (in favor of such remainder) in the Expansion Parcel are sufficient (when added to parking otherwise available to the remainder) to comply with all Leases of such remainder and with all Operating Agreements and which are adequate for the proper use and enjoyment of the remainder of the Individual Property;
(vi) Lender shall have received a Officer’s Certificate certifying that any improvements proposed to be built on the Expansion Parcel will not adversely affect the operation of the remainder of the Individual Property (after giving effect to any easements reserved or granted for the benefit of such remainder or the Expansion Parcel);
(vii) Lender shall have received an Appraisal of the Individual Property (using an income method of valuation (it being agreed that in conducting such valuation any income that might be derived from the sale or subsequent use of such Expansion Parcel shall not be included)) dated no more than ninety (90) days prior to the proposed Expansion Date by an appraiser (which appraiser shall be reasonably acceptable to Lender), indicating an appraised value of the Individual Property after the release, both before and after construction of improvements to be built on the Expansion Parcel, equal to or greater than the greater of (y) one hundred percent (100%) of the value of such Individual Property immediately prior to the release or (z) one hundred percent (100%) of the Allocated Loan Amount for such Individual Property on the Expansion Date;
(viii) Borrower shall have delivered a metes and bounds description of the Expansion Parcel and a survey of the Expansion Parcel and the remainder of the Individual Property which would be standard in commercial lending transactions;
(ix) Borrower shall have delivered to Lender on the date of the release an endorsement to the policy or policies of title insurance insuring the Mortgage on such Individual Property reflecting the release and (A) insuring Lender’s interest in any easements created in connection with the Release and (B) confirming no change in the priority of the Mortgage on the remainder of the Individual Property or in the amount of the insurance or the coverage under the policy or policies;
(x) Borrower shall deliver to Lender an Officer’s Certificate certifying that the requirements set forth in this Section 11.30 have been satisfied; and
(xi) Borrower shall pay all out-of-pocket costs and expenses of Lender incurred in connection with the partial release, including Lender’s reasonably attorneys’ fees and expenses.
(b) If Borrower shall provide a Letter of Credit to Lender on the Expansion Date as additional security for the Loan, the amount of the Loan equal to the amount of the Letter of Credit shall be added to the appraised value of the remainder of the Property after the release for the purposes of doing the comparison in Section l1.30(a)(vii11.30(a)(vii).
(c) If Borrower has elected to release the Expansion Parcel and the requirements of this Section 11.30 have been satisfied, the Expansion Parcel shall be released from the Lien of the Mortgage (and related Loan Documents) and Lender shall consent and subordinate the Lien of the Mortgage thereto. In connection with the release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Expansion Date (or such shorter time as is reasonably acceptable to Lender), a release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Property is located and shall contain standard provisions protecting the rights of a releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release, together with an Officer’s Certificate certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will effect such release in accordance with the terms of this Agreement. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien of the Mortgage, including Lender’s reasonable attorneys’ fees. Borrower shall cause title to the Expansion Parcel so released from the Lien of the Mortgage to be transferred to and held by a Person other than Borrower.
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