Prepayment; Defeasance. (a) This Note may not be prepaid, in whole or in part (except as otherwise specifically provided herein), at any time prior to the Payment Date occurring three (3) Payment Dates immediately prior to the Maturity Date (the “Lockout Expiration Date”). In the event that Xxxxxxxx wishes to have the Property (as hereinafter defined) released from the lien of the Security Instrument prior to the Lockout Expiration Date, Borrower’s sole option shall be a Defeasance (as hereinafter defined) upon satisfaction of the terms and conditions set forth in Section 1.5(d) hereof. This Note may be prepaid in whole but not in part without premium or penalty on any Payment Date occurring on or after the Lockout Expiration Date provided (i) written notice of such prepayment is received by Lender not more than ninety (90) days and not less than thirty (30) days prior to the date of such prepayment, and (ii) such prepayment is accompanied by all interest accrued hereunder through and including the date of such prepayment and all other sums due hereunder or under the other Loan Documents. If, upon any such permitted prepayment on any Payment Date occurring on or after the Lockout Expiration Date, the aforesaid prior written notice has not been timely received by Lender, there shall be due a prepayment fee equal to the lesser of (i) thirty (30) days’ interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid and (ii) interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid that would have been payable for the period from, and including, the date of prepayment through the Maturity Date, as though such prepayment had not occurred. (b) If, prior to the Lockout Expiration Date, the indebtedness evidenced by this Note shall have been declared due and payable by Lender pursuant to Article II hereof or the provisions of any other Loan Document due to a default by Xxxxxxxx, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. In addition to the amounts described in the preceding sentence, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made on or prior to the first (1st) anniversary of the date of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) of the principal balance of this Note. The term “Yield Maintenance Premium” shall mean an amount equal to the greater of (A) two percent (2.0%) of the principal amount being prepaid, and (B) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of this Note and on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) and multiplied by (iii) the principal sum outstanding under this Note after application of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx shall deliver to Borrower a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender shall have in good faith applied the formula described above, Borrower shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender on any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment fee.
Appears in 3 contracts
Samples: Promissory Note (NNN Healthcare/Office REIT, Inc.), Promissory Note (NNN Healthcare/Office REIT, Inc.), Promissory Note (NNN Healthcare/Office REIT, Inc.)
Prepayment; Defeasance. (a) This The principal balance of this Note may not be prepaid, prepaid in whole or in part (except as otherwise specifically provided herein), at any time prior to the date which is the second Payment Date occurring three (3) Payment Dates immediately prior to the Maturity Date (the “Lockout Expiration Date”). In "First Open Prepayment Date")(for example, if the event that Xxxxxxxx wishes to have Maturity Date is December 11 of a given calendar year, the Property (as hereinafter defined) released from the lien of the Security Instrument second Payment Date prior to the Lockout Expiration Maturity Date would be October 11 of such calendar year, and would constitute the First Open Prepayment Date).
(b) After the date which is the earlier to occur of (i) the second (2nd) anniversary of the "start-up day" (within the meaning of Section 860G(a)(9) of the Internal Revenue Code of 1986, as amended from time to time, or any successor statute (the "Code")), of the "real estate investment conduit" ("REMIC") that then holds this Note or (ii) the fourth (4th) anniversary of the date of this Note, and prior to the First Open Prepayment Date, Borrower’s sole option shall be a Defeasance (as hereinafter defined) upon satisfaction of Maker may voluntarily defease the terms and conditions set forth Debt in Section 1.5(d) hereof. This Note may be prepaid in whole whole, but not in part without premium or penalty on (such event, a "Defeasance"), by providing Payee with the Defeasance Collateral (as defined below) producing payments which replicate the Scheduled Defeasance Payments (as defined below), provided that any Payment Date occurring on or after Defeasance by Maker shall be subject to the Lockout Expiration Date provided satisfaction of the following conditions precedent and other provisions below:
(i) written notice of such prepayment is received by Lender not more than ninety (90) days and Maker shall provide not less than thirty (30) days prior written notice to Payee specifying a regularly scheduled payment date (the date "Defeasance Date") on which the Defeasance is to occur. Such notice shall indicate the principal amount of such prepayment, and this Note to be defeased;
(ii) Maker shall pay to Payee all accrued and unpaid interest on the principal balance of this Note to, but not including, the Defeasance Date. If for any reason the Defeasance Date is not a regularly scheduled Payment Date, Maker shall also pay interest that would have accrued on this Note through the next regularly scheduled Payment Date;
(iii) Maker shall pay to Payee all other sums, not including scheduled interest or principal payments, due under this Note, the Mortgage, and the other Loan Documents;
(iv) Maker shall pay to Payee an amount equal to the full principal amount of this Note together with an additional amount such prepayment that the aggregate amount (the "Defeasance Deposit") is accompanied by at least sufficient to purchase direct, non-callable obligations of the United States of America (the "Defeasance Collateral") that provide payments on or prior to, but as close as possible to, all successive scheduled payment dates after the Defeasance Date upon which interest accrued hereunder and/or principal payments are due under this Note through and including the date of such prepayment Maturity Date and all other sums due hereunder or under the other Loan Documents. If, upon any such permitted prepayment on any Payment Date occurring on or after the Lockout Expiration Date, the aforesaid prior written notice has not been timely received by Lender, there shall be due a prepayment fee in amounts equal to the lesser of (i) thirty (30) days’ interest computed at scheduled payments due on such dates, including, on the Note Rate on Maturity Date, the outstanding principal balance of this Note so prepaid Note, together with all interest accrued thereon and (ii) interest computed at the Note Rate on the outstanding principal balance of all other sums then due and owing upon this Note so prepaid that would have been payable for and under the period from, and including, Loan Documents (the date of prepayment through the Maturity Date, as though such prepayment had not occurred."Scheduled Defeasance Payments");
(bv) If, prior Maker shall deliver to the Lockout Expiration Date, the indebtedness evidenced by this Note shall have been declared due and payable by Lender pursuant to Article II hereof or the provisions of any other Loan Document due to a default by Xxxxxxxx, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. In addition to the amounts described in the preceding sentence, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made Payee on or prior to the Defeasance Date the following: (a) an executed security agreement, in form and substance satisfactory to Payee, creating a first priority lien on the Defeasance Deposit and the Defeasance Collateral (1stthe "Defeasance Security Agreement"); (b) anniversary an opinion of counsel for Maker in form and substance satisfactory to Payee in its sole discretion stating, among other things, that Maker has legally and validly transferred and assigned the Defeasance Collateral and all obligations, rights and duties under and to this Note to the Successor Borrower (as defined below); that Payee has a perfected first priority security interest in the Defeasance Deposit and the Defeasance Collateral delivered by Maker, and that any REMIC trust formed pursuant to Section 860D of the date Code that holds this Note will not fail to maintain its status as a REMIC within the meaning of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) Section 860D of the principal balance Code as a result of such Defeasance; (c) a certificate of Maker certifying that all requirements relating to defeasance set forth in this Note. The term “Yield Maintenance Premium” shall mean an amount equal Note and any other Loan Documents have been satisfied; (d) evidence in writing from each of the Rating Agencies (as defined below) to the greater effect that the Defeasance will not result in a qualification, downgrade or withdrawal of any rating in effect immediately prior to the Defeasance Date for any securities or "Pass-Through Certificates" issued pursuant to the terms of a trust and servicing agreement in the event that this Note or any interest therein is included in a REMIC or other securitization vehicle; (Ae) two percent a certificate from an independent certified public accounting firm selected by Payee certifying that the Defeasance Collateral is sufficient to satisfy the payments required under this Note as described above; and (2.0%f) such other certificates or instruments and Payee may reasonably request;
(vi) no Defeasance will be permitted hereunder unless the Crossed Loan is fully defeased in accordance with the terms and conditions of the principal amount being prepaidapplicable Crossed Loan Documents;
(vii) Maker shall deliver such other certificates, documents and instruments as Payee may reasonably request; and
(viii) Maker shall pay all costs and expenses to Payee incurred in connection with the Defeasance, including any costs and expenses associated with a release of the lien of the Mortgage as provided below as well as reasonable accountants' and attorneys' fees and expenses.
(c) For purposes hereof, "Rating Agencies" shall mean, collectively, (i) Standard and Poor's Rating Services, (ii) Xxxxx'x Investors Service, Inc., (iii) Fitch Ratings. (or its affiliates), and (Biv) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of this Note and on the Maturity Dateany other rating agency designated by Xxxxx, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) respective successors and multiplied by (iii) the principal sum outstanding under this Note after application assigns of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx shall deliver to Borrower a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender shall have in good faith applied the formula described above, Borrower shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender on any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment feeeach.
Appears in 2 contracts
Samples: Fixed Rate Note (Ramco Gershenson Properties Trust), Fixed Rate Note (Ramco Gershenson Properties Trust)
Prepayment; Defeasance. (a) This Note may not be prepaid, in whole or in part (except as otherwise specifically provided herein), at any time prior to the Payment Date occurring three two (32) Payment Dates immediately prior to the Maturity Date (the “Lockout Expiration Date”). In the event that Xxxxxxxx wishes to have the Property (as hereinafter defineddefined in the Security Instrument) released from the lien of the Security Instrument (as hereinafter defined) prior to the Lockout Expiration Date, Borrower’s sole option shall be a Defeasance (as hereinafter defined) upon satisfaction of the terms and conditions set forth in Section 1.5(d) hereof. This Notwithstanding anything contained in this Note or any of the other Loan Documents to the contrary, this Note may be prepaid in whole but not in part without premium or penalty on any Payment Date (subject to the proviso below) occurring on or from and after the Lockout Expiration Date provided (i) written notice of such prepayment is received by Lender not more than ninety (90) days and not less than thirty (30) days prior to the date of such prepayment, and (ii) such prepayment is accompanied by all interest accrued hereunder through and including the date of such prepayment and all other sums due hereunder or under the other Loan Documents; provided, however, that if such prepayment is received on a day that is not a Payment Date, Borrower shall pay interest on the outstanding principal balance hereof immediately preceding such prepayment at the Note Rate for a period from the date of such payment through and including the tenth (10th) day of either (x) the month in which the prepayment occurs if such payment is made prior to the 11th day of such month, and (y) the immediately succeeding month in which the prepayment occurs if such payment is made after the 11th day of such month. If, upon any such permitted prepayment on any Payment Date occurring on or after the Lockout Expiration Date, the aforesaid prior written notice has not been timely received by Lender, there shall be due a prepayment fee equal to the lesser of (i) thirty (30) days’ interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid and (ii) interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid that would have been payable for the period from, and including, the date of prepayment through the Maturity Date, as though such prepayment had not occurred.
(b) If, prior to the Lockout Expiration Date, the indebtedness evidenced by this Note shall have been declared due and payable by Lender pursuant to Article II hereof or the provisions of any other Loan Document due to a default an Event of Default by XxxxxxxxBorrower, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. In addition to the amounts described in the preceding sentence, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made on or prior to the first (1st) anniversary of the date of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) of the principal balance of this Note. The term “Yield Maintenance Premium” shall mean an amount equal to the greater of (A) two percent (2.0%) of the principal amount being prepaid, and (B) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of this Note and on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) and multiplied by (iii) the principal sum outstanding under this Note after application of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx shall deliver to Borrower a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender shall have in good faith applied the formula described above, Borrower shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender on any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment fee.
Appears in 1 contract
Samples: Promissory Note (Lightstone Value Plus Real Estate Investment Trust, Inc.)
Prepayment; Defeasance. (a) This B Note may not be prepaid, in whole or in part (except as otherwise specifically provided herein), at any time prior to the Payment Date occurring three (3) Payment Dates immediately prior to the Maturity Date (the “Lockout Expiration Date”)time. In the event that Xxxxxxxx Maker wishes to have the Security Property (as hereinafter defined) released from the lien of the Security Instrument prior to the Lockout Expiration Date(as hereinafter defined), Borrower’s Maker's sole option shall be a Defeasance (as hereinafter defined) upon satisfaction of the terms and conditions set forth in Section 1.5(d) hereof, provided, however, that any Defeasance under this B Note must occur simultaneously with the Defeasance of the A Note. This B Note may be prepaid in whole but not in part without premium or penalty on any either of the two (2) Payment Date Dates occurring on or after immediately prior to the Lockout Expiration Maturity Date provided (i) written notice of such prepayment is received by Lender Payee not more than ninety (90) days and not less than thirty (30) days prior to the date of such prepayment, and (ii) such prepayment is accompanied by all interest accrued hereunder through and including the date of such prepayment and all other sums due hereunder or under the other Loan Documents. If, upon any such permitted prepayment on any either of the two (2) Payment Date Dates occurring on or after immediately prior to the Lockout Expiration Maturity Date, the aforesaid prior written notice has not been timely received by LenderPayee, there shall be due a prepayment fee equal to, an amount equal to the lesser of (i) thirty (30) days’ ' interest computed at the Note Rate on the outstanding principal balance of this B Note so prepaid and (ii) interest computed at the Note Rate on the outstanding principal balance of this B Note so prepaid that would have been payable for the period from, and including, the date of prepayment through the Maturity Date, Date of this B Note as though such prepayment had not occurred.
(b) If, prior to the Lockout Expiration Datefourth (4th) anniversary of the First Payment Date (the "LOCKOUT EXPIRATION DATE"), the indebtedness evidenced by this B Note shall have been declared due and payable by Lender Payee pursuant to Article II hereof or the provisions of any other Loan Document due to a default by XxxxxxxxMaker, then, in addition to the indebtedness evidenced by this B Note being immediately due and payable, there shall also then be immediately due and payable a sum equal to the interest which would have accrued on the principal balance of this Note at the Note Rate from the date of such acceleration to the Lockout Expiration Date, together with a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. If such acceleration is on or following the Lockout Expiration Date, the Yield Maintenance Premium shall also then be immediately due and payable as though Maker were prepaying the entire indebtedness on the date of such acceleration. In addition to the amounts described in the two preceding sentencesentences, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made on or prior to the first (1st) anniversary of the date of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) of the principal balance of this B Note. The term “Yield Maintenance Premium” "YIELD MAINTENANCE PREMIUM" shall mean an amount equal to the greater of (A) two percent (2.0%) of the principal amount being prepaid, and (B) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of this B Note and on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” "PAYMENT DIFFERENTIAL" shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) and multiplied by (iii) the principal sum outstanding under this B Note after application of the constant monthly payment due under this B Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” "REINVESTMENT YIELD" shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this B Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx Pxxxx shall deliver to Borrower Maker a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender Payee shall have in good faith applied the formula described above, Borrower Maker shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender Payee on any day during the fifteen (15) day period preceding the date of such prepayment. Lender Payee shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment fee.
Appears in 1 contract
Prepayment; Defeasance. (a) This The principal balance of this Note may not be prepaid, prepaid in whole or in part (except as otherwise specifically provided herein), at any time prior to the Payment Date occurring three date which is sixty (360) Payment Dates immediately calendar days prior to the Maturity Date Date.
(b) After the date which is the earlier to occur of (i) the second (2nd) anniversary of the "start-up day" (within the meaning of Section 860G(a)(9) of the Internal Revenue Code of 1986, as amended from time to time, or any successor statute (the “Lockout Expiration Date”"Code"). In the event that Xxxxxxxx wishes to have the Property (as hereinafter defined) released from the lien ), of the Security Instrument "real estate investment conduit" ("REMIC") that then holds this Note or (ii) the fourth (4th) anniversary of the date of this Note, and prior to the Lockout Expiration date which is sixty (60) calendar days prior to the Maturity Date, Borrower’s sole option shall be a Defeasance (as hereinafter defined) upon satisfaction of Maker may voluntarily defease the terms and conditions set forth Debt in Section 1.5(d) hereof. This Note may be prepaid in whole whole, but not in part without premium or penalty on (such event, a "Defeasance"), by providing Payee with the Defeasance Collateral (as defined below) producing payments which replicate the Scheduled Defeasance Payments (as defined below), provided that any Payment Date occurring on or after Defeasance by Maker shall be subject to the Lockout Expiration Date provided satisfaction of the following conditions precedent and other provisions below:
(i) written notice of such prepayment is received by Lender not more than ninety (90) days and Maker shall provide not less than thirty (30) days prior written notice to Payee specifying a regularly scheduled payment date (the date "Defeasance Date") on which the Defeasance is to occur. Such notice shall indicate the principal amount of such prepayment, and this Note to be defeased;
(ii) Maker shall pay to Payee all accrued and unpaid interest on the principal balance of this Note to, but not including, the Defeasance Date. If for any reason the Defeasance Date is not a regularly scheduled payment date, Maker shall also pay interest that would have accrued on this Note through the next regularly scheduled payment date;
(iii) Maker shall pay to Payee all other sums, not including scheduled interest or principal payments, due under this Note, the Mortgage, and the other Loan Documents;
(iv) Maker shall pay to Payee an amount equal to the full principal amount of this Note together with an additional amount such prepayment that the aggregate amount (the "Defeasance Deposit") is accompanied by at least sufficient to purchase direct, non-callable obligations of the United States of America (the "Defeasance Collateral") that provide payments on or prior to, but as close as possible to, all successive scheduled payment dates after the Defeasance Date upon which interest accrued hereunder and/or principal payments are due under this Note through and including the date of such prepayment Maturity Date and all other sums due hereunder or under the other Loan Documents. If, upon any such permitted prepayment on any Payment Date occurring on or after the Lockout Expiration Date, the aforesaid prior written notice has not been timely received by Lender, there shall be due a prepayment fee in amounts equal to the lesser of (i) thirty (30) days’ interest computed at scheduled payments due on such dates, including, on the Note Rate on Maturity Date, the outstanding principal balance of this Note so prepaid Note, together with all interest accrued thereon and (ii) interest computed at the Note Rate on the outstanding principal balance of all other sums then due and owing upon this Note so prepaid that would have been payable for and under the period from, and including, Loan Documents (the date of prepayment through the Maturity Date, as though such prepayment had not occurred."Scheduled Defeasance Payments");
(bv) If, prior Maker shall deliver to the Lockout Expiration Date, the indebtedness evidenced by this Note shall have been declared due and payable by Lender pursuant to Article II hereof or the provisions of any other Loan Document due to a default by Xxxxxxxx, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. In addition to the amounts described in the preceding sentence, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made Payee on or prior to the Defeasance Date the following: (a) an executed security agreement, in form and substance satisfactory to Payee, creating a first priority lien on the Defeasance Deposit and the Defeasance Collateral (1stthe "Defeasance Security Agreement"); (b) anniversary an opinion of counsel for Maker in form and substance satisfactory to Payee in its sole discretion stating, among other things, that Maker has legally and validly transferred and assigned the Defeasance Collateral and all obligations, rights and duties under and to this Note to the Successor Borrower (as defined below); that Payee has a perfected first priority security interest in the Defeasance Deposit and the Defeasance Collateral delivered by Maker, and that any REMIC trust formed pursuant to Section 860D of the date Code that holds this Note will not fail to maintain its status as a REMIC within the meaning of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) Section 860D of the principal balance Code as a result of this Note. The term “Yield Maintenance Premium” shall mean an amount equal such Defeasance; (c) a certificate of Maker certifying that all requirements relating to the greater of (A) two percent (2.0%) of the principal amount being prepaid, and (B) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of defeasance set forth in this Note and on any other Loan Documents have been satisfied; (d) evidence in writing from each of the Maturity Date, discounted at the Reinvestment Yield Rating Agencies (as hereinafter defineddefined below) to the effect that the Defeasance will not result in a qualification, downgrade or withdrawal of any rating in effect immediately prior to the Defeasance Date for any securities or "Pass-Through Certificates" issued pursuant to the number terms of months remaining a trust and servicing agreement in the event that this Note or any interest therein is included in a REMIC or other securitization vehicle; (e) a certificate from an independent certified public accounting firm selected by Payee certifying that the Defeasance Collateral is sufficient to satisfy the payments required under this Note as described above; and (f) such other certificates or instruments and Payee may reasonably request;
(vi) Maker shall deliver such other certificates, documents and instruments as Payee may reasonably request; and
(vii) Maker shall pay all costs and expenses to Payee incurred in connection with the Defeasance, including any costs and expenses associated with a release of the date lien of such prepayment to each such Payment Date the Mortgage as provided below as well as reasonable accountants' and the Maturity Date. The term “Payment Differential” attorneys' fees and expenses.
(c) For purposes hereof, "Rating Agencies" shall mean an amount equal to mean, collectively, (i) the Note Rate less the Reinvestment YieldStandard and Poor's Rating Services, divided by (ii) twelve (12) and multiplied by Moody's Investors Service, Inc., (iii) Fitch, Inc. (or its affiliatex), xxx (iv) any other rating agency designated by Payee, and the principal sum outstanding under this Note after application respective successors and assigns of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx shall deliver to Borrower a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender shall have in good faith applied the formula described above, Borrower shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender on any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment feeeach.
Appears in 1 contract
Samples: Fixed Rate Note (Ramco Gershenson Properties Trust)
Prepayment; Defeasance. (a) This Note may not be prepaid, in whole or in part (except as otherwise specifically provided herein), at any time prior to the Payment Date occurring three (3) Payment Dates immediately prior to the Maturity Date (the “Lockout Expiration Optional Prepayment Date”). In the event that Xxxxxxxx Maker wishes to have the Security Property (as hereinafter defined) released from the lien of the Security Instrument prior to the Lockout Expiration Optional Prepayment Date, Borrower’s Maker's sole option shall be a Defeasance (as hereinafter defined) upon satisfaction of the terms and conditions set forth in Section 1.5(d1.7(d) hereof. This Note may be prepaid in whole but not in part without premium or penalty on any of the three (3) Payment Date Dates occurring on or after immediately prior to the Lockout Expiration Maturity Date provided (i) written notice of such prepayment is received by Lender Payee not more than ninety (90) days and not less than thirty (30) days prior to the date of such prepayment, and (ii) such prepayment is accompanied by all interest accrued hereunder through and including the date of such prepayment and all other sums due hereunder or under the other Loan Documents. If, upon any such permitted prepayment on any of the three (3) Payment Date Dates occurring on or after immediately prior to the Lockout Expiration Maturity Date, the aforesaid prior written notice has not been timely received by LenderPayee, there shall be due a prepayment fee equal to, an amount equal to the lesser of (i) thirty (30) days’ ' interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid and (ii) interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid that would have been payable for the period from, and including, the date of prepayment through the Maturity Date, Date of this Note as though such prepayment had not occurred.
(b) If, prior to the Lockout fourth (4th) anniversary of the First Payment Date (the "Lock-out Expiration Date"), the indebtedness evidenced by this Note shall have been declared due and payable by Lender Payee pursuant to Article II III hereof or the provisions of any other Loan Document due to a default by XxxxxxxxMaker, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a sum equal to the interest which would have accrued on the principal balance of this Note at the Note Rate from the date of such acceleration to the Lock-out Expiration Date, together with a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. If such acceleration is on or following the Lock-out Expiration Date, the Yield Maintenance Premium shall also then be immediately due and payable as though Maker were prepaying the entire indebtedness on the date of such acceleration. In addition to the amounts described in the two preceding sentencesentences, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made on or prior to the first (1st) anniversary of the date of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) of the principal balance of this Note. The term “"Yield Maintenance Premium” " shall mean an amount equal to the greater of (A) two percent (2.0%) of the principal amount being prepaid, and (B) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of this Note and on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) and multiplied by (iii) the principal sum outstanding under this Note after application of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx shall deliver to Borrower a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender shall have in good faith applied the formula described above, Borrower shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender on any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment fee.of
Appears in 1 contract
Samples: Promissory Note (Cole Credit Property Trust II Inc)
Prepayment; Defeasance. (a) This Borrower shall not have the right or privilege to prepay all or any portion of the unpaid principal balance of this Note until the Monthly Payment Date which is three (3) months prior to the Maturity Date. From and after such date, provided no Event of Default exists, the principal balance of this Note may not be prepaid, in whole or but not in part part, upon: (except as otherwise specifically provided hereini) not less than fifteen (15) days prior written notice (the “Prepayment Notice”) to Lender specifying the scheduled payment date on which prepayment is to be made (the “Prepayment Date”); (ii) payment of all accrued and unpaid interest on the outstanding principal balance of this Note to and including the Prepayment Date together with a payment of all interest which would have accrued on the principal balance of this Note to and including the last day of the Accrual Period in which the Prepayment Date occurs, at if such prepayment occurs on a date which is not the eleventh (11th) day of a calendar month (the “Shortfall Interest Payment”); and (iii) payment of all other sums then due under this Note, the Security Instrument and the other Loan Documents. Lender shall not be obligated to accept any prepayment of the principal balance of this Note unless it is accompanied by all sums due in connection therewith.
(i) At any time from and after the Lockout Period Expiration Date and provided no Event of Default exists at the time, Borrower may obtain the release of the Property from the lien of the Security Instrument upon the satisfaction of the following conditions precedent:
(1) Borrower shall have provided Lender with not less than thirty (30) days and not more than sixty (60) days prior written notice specifying the date (the “Release Date”) on which the Defeasance Deposit (hereinafter defined) is to be made;
(2) Borrower shall have paid to Lender all interest accrued and unpaid on the Payment Date occurring three principal balance of this Note to and including the Release Date;
(3) Borrower shall have paid to Lender all other sums due and payable under this Note, the Security Instrument and the other Loan Documents through and including the Release Date (including, but not limited to, any Constant Monthly Payment Dates which may he due and payable on the Release Date);
(4) Borrower shall have paid to Lender the Defeasance Deposit (hereinafter defined);
(5) The transactions contemplated by this Section 5(b) shall not cause the Loan to lose its status as a “qualified mortgage” within the meaning of Sections 860D and 860G(a)(3) of the Internal Revenue Code of 1986, as amended, or any successor statute thereto; and
(6) Borrower shall have delivered to Lender the following:
(A) a security agreement, in form and substance satisfactory to Lender, creating a first priority lien on the Defeasance Deposit and the Government Securities (hereinafter defined) purchased on behalf of Borrower with the Defeasance Deposit in accordance with the provisions of this Section 5(b) (the “Pledge Agreement”), which Pledge Agreement shall provide, among other things, that any excess payments of principal and interest received by Lender under the Government Securities over the amount needed to make payments of principal and interest and other sums due from Borrower hereunder shall be refunded to Borrower;
(B) a release of the Property from the lien of the Security Instrument (for execution by Xxxxxx) in a form appropriate for the jurisdiction in which the Property is located;
(C) an officer’s certificate of Borrower certifying that the requirements set forth in this Section 5(b) have been satisfied;
(D) a certificate by Xxxxxxxx’s independent public accountant certifying that the cash flow from the Government Securities will be sufficient to timely meet all Scheduled Defeasance Payments;
(E) an opinion of counsel for Xxxxxxxx in form satisfactory to Xxxxxx stating, among other things, that Xxxxxx will have a perfected first priority security interest in the Defeasance Deposit and the Government Securities to be purchased on behalf of Borrower;
(F) evidence in writing from the applicable Rating Agencies (as defined in the Security Instrument) to the effect that such release will not result in a qualification, downgrade or withdrawal of any rating in effect immediately prior to such defeasance for any Securities (as defined in the Maturity Date (Security Instrument) if the “Lockout Expiration Date”). In the event that Xxxxxxxx wishes Defeasance Deposit is to have the Property be used to purchase Non-U.S. Treasury Obligations (as hereinafter defined); and
(G) such other certificates, documents or instruments as Lender may reasonably request. The Defeasance Deposit shall be used to purchase Government Securities which provide payments which are (A) payable on or prior to, but as close as possible to, all successive Monthly Payment Dates after the Release Date and the Maturity Date and (B) in amounts necessary to meet the scheduled payments of principal and interest due under this Note on such dates (the “Scheduled Defeasance Payments”). Borrower, pursuant to the Pledge Agreement or other appropriate documents, shall authorize and direct that the payments received from the Government Securities be made directly to Lender and applied to satisfy the obligations of the Borrower under this Note.
(ii) Upon compliance with the requirements of this Section 5(b), the Property shall be released from the lien of the Security Instrument prior to and the Lockout Expiration Date, Borrower’s sole option pledged Defeasance Deposit and the Government Securities purchased therewith shall be the sole source of collateral securing this Note. In connection with such release, Lender, or its designee, shall establish or designate a successor entity (the “Successor Borrower”) and Borrower shall transfer and assign all obligations, rights and duties under and to this Note together with the Pledge Agreement and the pledged Defeasance (as hereinafter defined) upon satisfaction of Deposit and/or Government Securities to such Successor Borrower. At the terms and conditions set forth in Section 1.5(d) hereof. This Note may be prepaid in whole but not in part without premium or penalty on any Payment Date occurring on or after the Lockout Expiration Date provided (i) written notice time of such prepayment is received by Lender not more than ninety (90) days release, such Successor Borrower shall assume the obligations of Borrower under this Note and not less than thirty (30) days prior to the date Pledge Agreement, Borrower shall be relieved of such prepaymentits rights and obligations thereunder, and (ii) such prepayment is accompanied by all interest accrued hereunder through and including references to Borrower herein or in the date of such prepayment and all other sums due hereunder or under the other Loan Documents. If, upon any such permitted prepayment on any Payment Date occurring on or after the Lockout Expiration Date, the aforesaid prior written notice has not been timely received by Lender, there Pledge Agreement shall be due a prepayment fee equal deemed to the lesser of (irefer to Successor Borrower. Borrower shall pay all costs and expenses incurred by Xxxxxx, including Xxxxxx’s attorneys’ fees and expenses and if paragraph 5(b)(i)(6)(F) thirty (30) days’ interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid and (ii) interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid that would have been payable for the period fromabove is applicable, and including, the date of prepayment through the Maturity Date, as though such prepayment had not occurredany Rating Agency fees incurred in connection with this Section 5(b).
(biii) If, prior to the Lockout Expiration DateFor purposes hereof, the indebtedness evidenced by this Note following terms shall have been declared due and payable by Lender pursuant to Article II hereof or the provisions of any other Loan Document due to a default by Xxxxxxxx, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. In addition to the amounts described in the preceding sentence, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made on or prior to the first (1st) anniversary of the date of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) of the principal balance of this Note. The term “Yield Maintenance Premium” shall mean an amount equal to the greater of (A) two percent (2.0%) of the principal amount being prepaid, and (B) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of this Note and on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) and multiplied by (iii) the principal sum outstanding under this Note after application of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx shall deliver to Borrower a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender shall have in good faith applied the formula described above, Borrower shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender on any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment fee.following meanings:
Appears in 1 contract
Samples: Promissory Note (Secured Investment Resources Fund Lp Ii)
Prepayment; Defeasance. (a) This Note may not be prepaid, in whole or in part (except as otherwise specifically provided herein), at any time prior to the Payment Date occurring three (3) Payment Dates immediately prior to the Maturity Date (the “Lockout Expiration Date”)time. In the event that Xxxxxxxx wishes to have the Security Property (as hereinafter defined) released from the lien of the Security Instrument prior to the Lockout Expiration Date(as hereinafter defined), Borrower’s sole option shall be a Defeasance (as hereinafter defined) upon satisfaction of the terms and conditions set forth in Section 1.5(d1.05(d) hereof. This Note may be prepaid in whole but not in part without premium or penalty on any either of the last two (2) Payment Date Dates occurring on or after immediately prior to the Lockout Expiration Maturity Date provided (i) written notice of such prepayment is received by Lender Payee not more than ninety (90) days and not less than thirty (30) days prior to the date of such prepayment, and (ii) such prepayment is accompanied by all interest accrued hereunder through and including the date of such prepayment and all other sums due hereunder or under the other Loan Documents. If, upon any such permitted prepayment on any either of the last two (2) Payment Date occurring on or after Dates immediately prior to the Lockout Expiration Maturity Date, the aforesaid prior written notice has not been timely received by LenderXxxxxx, there shall be due a prepayment fee equal to, an amount equal to the lesser of (i) thirty (30) days’ interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid and (ii) interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid that would have been payable for the period from, and including, the date of prepayment through the Maturity Date, Date of this Note as though such prepayment had not occurredoccurred .
(b) Partial prepayments of this Note shall not be permitted, except for partial prepayments resulting from Xxxxxx’s election to apply insurance or condemnation proceeds to reduce the outstanding principal balance of this Note as provided in the Security Instrument, in which event no prepayment fee or premium shall be due unless, at the time of either Xxxxxx’s receipt of such proceeds or the application of such proceeds to the outstanding principal balance of this Note, an Event of Default, or an event which, with notice or the passage of time, or both, would constitute an Event of Default, shall have occurred, which default or Event of Default is unrelated to the applicable casualty or condemnation, in which event the applicable prepayment fee or premium shall be due and payable based upon the amount of the prepayment. No notice of prepayment shall be required under the circumstances specified in the preceding sentence. No principal amount repaid may be reborrowed. Any such partial prepayments- of principal shall be applied to the unpaid principal balance evidenced hereby but such application shall not reduce the amount of the fixed monthly installments required to be paid pursuant to Section 1.02 above Except as otherwise expressly provided in this Section 1 .05(b), the prepayment fees provided in the immediate following paragraph shall be due, to the extent permitted by applicable law, under any and all circumstances where all or any portion of this Note is paid prior to the Maturity Date, whether such prepayment is voluntary or involuntary, including, without limitation, if such prepayment results from Xxxxxx’s exercise of its rights upon Xxxxxxxx’s default and acceleration of the Maturity Date of this Note respective of (irrespective of whether foreclosure proceedings have been commenced), and shall be in. addition to any other sums due hereunder or under any of the other’ Loan Documents. No tender of a prepayment of this Note with respect to which a prepayment fee is due shall be effective unless such prepayment is accompanied by the applicable prepayment fee.
(c) If, prior to the Lockout Expiration DateDate (as hereinafter defined), the indebtedness evidenced by this Note shall have been declared due and payable by Lender pursuant to Article II hereof or the provisions of any other Loan Document due to a default by XxxxxxxxBorrower, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a sum equal to the interest which would have accrued on the principal balance of this Note at the Note Rate from the date of such acceleration to the Lock-out Expiration Date, together with a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. If such acceleration is on or following the Lockout Expiration-Date;-the-Yield -Maintenance-Premium -shall .also then-be -immediately due and payable as though Borrower were prepaying the entire indebtedness on the date of such acceleration. In addition to the amounts described in the two preceding sentencesentences, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made on or prior to the first (1st) anniversary of the date of this NoteLockout Expiration Date, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) of the principal balance of this Note. The term “Yield Maintenance Premium” Premium shall mean an amount equal to the greater of (A) two percent (2.0%) of the principal amount being prepaid, and (B) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of this Note and on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) and multiplied by (iii) the principal sum outstanding under this Note after application of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx shall deliver to Borrower a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender shall have in good faith applied the formula described above, Borrower shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender on any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment fee.of
Appears in 1 contract
Samples: Promissory Note (Secured Investment Resources Fund Lp Ii)
Prepayment; Defeasance. (a) This Note may not be prepaid, in whole or in part (except as otherwise specifically provided herein), at any time prior to the Payment Date occurring three four (34) Payment Dates immediately prior to the Maturity Date (the “Lockout Expiration Date”). In the event that Xxxxxxxx wishes to have the Property (as hereinafter defined) released from the lien of the Security Instrument prior to the Lockout Expiration Date, Borrower’s sole option shall be a Defeasance (as hereinafter defined) upon satisfaction of the terms and conditions set forth in Section 1.5(d) hereof. This Note may be prepaid in whole but not in part without premium or penalty on any Payment Date occurring on or after the Lockout Expiration Date provided (i) written notice of such prepayment is received by Lender not more than ninety (90) days and not less than thirty (30) days prior to the date of such prepayment, and (ii) such prepayment is accompanied by all interest accrued hereunder through and including the date of such prepayment and all other sums due hereunder or under the other Loan Documents. If, upon any such permitted prepayment on any Payment Date occurring on or after the Lockout Expiration Date, the aforesaid prior written notice has not been timely received by Lender, there shall be due a prepayment fee equal to the lesser of (i) thirty (30) days’ interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid and (ii) interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid that would have been payable for the period from, and including, the date of prepayment through the Maturity Date, as though such prepayment had not occurred.
(b) If, prior to the Lockout Expiration Date, the indebtedness evidenced by this Note shall have been declared due and payable by Lender pursuant to Article II hereof or the provisions of any other Loan Document due to a default by Xxxxxxxx, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. In addition to the amounts described in the preceding sentence, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made on or prior to the first (1st) anniversary of the date of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) of the principal balance of this Note. The term “Yield Maintenance Premium” shall mean an amount equal to the greater of (A) two percent (2.0%) of the principal amount being prepaid, and (B) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of this Note and on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) and multiplied by (iii) the principal sum outstanding under this Note after application of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx shall deliver to Borrower a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender shall have in good faith applied the formula described above, Borrower shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender on any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment fee.two
Appears in 1 contract
Prepayment; Defeasance. (a) This B Note may not be prepaid, in whole or in part (except as otherwise specifically provided herein), at any time prior to the Payment Date occurring three (3) Payment Dates immediately prior to the Maturity Date (the “Lockout Expiration Date”)time. In the event that Xxxxxxxx Maker wishes to have the Security Property (as hereinafter defined) released from the lien of the Security Instrument prior to the Lockout Expiration Date(as hereinafter defined), BorrowerMaker’s sole option shall be a Defeasance (as hereinafter defined) upon satisfaction of the terms and conditions set forth in Section 1.5(d) hereof, provided, however, that any Defeasance under this B Note must occur simultaneously with the Defeasance of the A Note. This B Note may be prepaid in whole but not in part without premium or penalty on any either of the two (2) Payment Date Dates occurring on or after immediately prior to the Lockout Expiration Maturity Date provided (i) written notice of such prepayment is received by Lender Payee not more than ninety (90) days and not less than thirty (30) days prior to the date of such prepayment, and (ii) such prepayment is accompanied by all interest accrued hereunder through and including the date of such prepayment and all other sums due hereunder or under the other Loan Documents. If, upon any such permitted prepayment on any either of the two (2) Payment Date Dates occurring on or after immediately prior to the Lockout Expiration Maturity Date, the aforesaid prior written notice has not been timely received by LenderPayee, there shall be due a prepayment fee equal to, an amount equal to the lesser of (i) thirty (30) days’ interest computed at the Note Rate on the outstanding principal balance of this B Note so prepaid and (ii) interest computed at the Note Rate on the outstanding principal balance of this B Note so prepaid that would have been payable for the period from, and including, the date of prepayment through the Maturity Date, Date of this B Note as though such prepayment had not occurred.
(b) If, prior to the fourth (4th) anniversary of the First Payment Date (the “Lockout Expiration Date”), the indebtedness evidenced by this B Note shall have been declared due and payable by Lender Payee pursuant to Article II hereof or the provisions of any other Loan Document due to a default by XxxxxxxxMaker, then, in addition to the indebtedness evidenced by this B Note being immediately due and payable, there shall also then be immediately due and payable a sum equal to the interest which would have accrued on the principal balance of this Note at the Note Rate from the date of such acceleration to the Lockout Expiration Date, together with a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. If such acceleration is on or following the Lockout Expiration Date, the Yield Maintenance Premium shall also then be immediately due and payable as though Maker were prepaying the entire indebtedness on the date of such acceleration. In addition to the amounts described in the two preceding sentencesentences, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made on or prior to the first (1st) anniversary of the date of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) of the principal balance of this B Note. The term “Yield Maintenance Premium” shall mean an amount equal to the greater of (A) two percent (2.0%) of the principal amount being prepaid, and (B) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of this B Note and on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) and multiplied by (iii) the principal sum outstanding under this B Note after application of the constant monthly payment due under this B Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this B Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx shall Paxxx xhall deliver to Borrower Maker a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender Payee shall have in good faith applied the formula described above, Borrower Maker shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender Payee on any day during the fifteen (15) day period preceding the date of such prepayment. Lender Payee shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment fee.
Appears in 1 contract
Prepayment; Defeasance. (a) This The principal balance of this Note may not be prepaid, prepaid in whole or in part (except as otherwise specifically provided herein), at any time prior to the Payment Date occurring three date which is sixty (360) Payment Dates immediately calendar days prior to the Maturity Date Date.
(b) After the date which is the earlier to occur of (i) the second (2nd) anniversary of the "start-up day" .(within the meaning of Section 860G(a)(9) of the Internal Revenue Code of 1986, as amended from time to time, or any successor statute (the “Lockout Expiration Date”"Code"). In the event that Xxxxxxxx wishes to have the Property (as hereinafter defined) released from the lien ), of the Security Instrument "real estate investment conduit" ("REMIC") that then holds this Note or (ii) the fourth (4th) anniversary of the-date of this Note, and prior to the Lockout Expiration date which is sixty (60) calendar days prior to the Maturity Date, Borrower’s sole option shall be a Defeasance (as hereinafter defined) upon satisfaction of Maker may voluntarily defease the terms and conditions set forth Debt in Section 1.5(d) hereof. This Note may be prepaid in whole whole, but not in part without premium or penalty on (except as provided in Section 5A below) (such event, a "Defeasance"), by providing Payee with the Defeasance Collateral (as defined below) producing payments which replicate the Scheduled Defeasance Payments (as defined below), provided that any Payment Date occurring on or after Defeasance by Maker shall be subject to the Lockout Expiration Date provided satisfaction of the following conditions precedent and other provisions below:
(i) written notice of such prepayment is received by Lender not more than ninety (90) days and Maker shall provide not less than thirty (30) days prior written notice to Payee specifying a regularly scheduled payment date (the date "Defeasance Date") on which the Defeasance is to occur. Such notice shall indicate the principal amount of such prepayment, and this Note to be defeased;
(ii) Maker shall pay to Payee all accrued and unpaid interest on the principal balance of this Note to, but not including, the Defeasance Date. If for any reason the Defeasance Date is not a regularly scheduled payment date, Maker shall also pay interest that would have accrued on this Note through the next regularly scheduled payment date;
(iii) Maker shall pay to Payee all other sums, not including scheduled interest or principal payments, due under this Note, the Mortgage, and the other Loan Documents;
(iv) Maker shall pay to Payee an amount equal to the full principal amount of this Note together with an additional amount such prepayment that the aggregate amount (the "Defeasance Deposit") is accompanied by at least sufficient to purchase direct, non- callable obligations of the United States of America (the "Defeasance Collateral") that provide payments on or prior to, but as close as possible to, all successive scheduled payment dates after the Defeasance Date upon which interest accrued hereunder and/or principal payments are due under this Note through and including the date of such prepayment Maturity Date and all other sums due hereunder or under the other Loan Documents. If, upon any such permitted prepayment on any Payment Date occurring on or after the Lockout Expiration Date, the aforesaid prior written notice has not been timely received by Lender, there shall be due a prepayment fee in amounts equal to the lesser of (i) thirty (30) days’ interest computed at scheduled payments due on such dates, including, on the Note Rate on Maturity Date, the outstanding principal balance of this Note so prepaid Note, together with all interest accrued thereon and (ii) interest computed at the Note Rate on the outstanding principal balance of all other sums then due and owing upon this Note so prepaid that would have been payable for and under the period from, and including, Loan Documents (the date of prepayment through the Maturity Date, as though such prepayment had not occurred."Scheduled Defeasance Payments");
(bv) If, prior Maker shall deliver to the Lockout Expiration Date, the indebtedness evidenced by this Note shall have been declared due and payable by Lender pursuant to Article II hereof or the provisions of any other Loan Document due to a default by Xxxxxxxx, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. In addition to the amounts described in the preceding sentence, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made Payee on or prior to the Defeasance Date the following: (a) an executed security agreement, in form and substance reasonably satisfactory to Payee, creating a first priority lien on the Defeasance Deposit and the Defeasance Collateral (1stthe "Defeasance Security Agreement"); (b) anniversary an opinion of counsel for Maker in form and substance reasonably satisfactory to Payee in its sole discretion stating, among other things, that Maker has legally and validly transferred and assigned the Defeasance Collateral and all obligations, nghts and duties under and to this Note to the Successor Borrower (as defined below), that Payee has a perfected first priority security interest in the Defeasance Deposit and the Defeasance Collateral delivered by Maker, and that any REMIC trust formed pursuant to Section 860D of the date Code that holds this Note will not fail to maintain its status as a REMIC within the meaning of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) Section 860D of the principal balance Code as a result of such Defeasance; (c) a certificate of Maker certifying that all requirements relating to defeasance set forth in this Note. The term “Yield Maintenance Premium” shall mean an amount equal Note and any other Loan Documents have been satisfied; (d) evidence in writing from each of the Rating Agencies (as defined below) to the greater effect that the Defeasance will not result in a qualification, downgrade or withdrawal of (A) two percent (2.0%) any rating in effect immediately prior to the Defeasance Date for any securities or "Pass-Through Certificates" issued pursuant to the terms of a trust and servicing agreement in the principal amount being prepaidevent that this Note or any interest therein is included in a REMIC or other securitization vehicle, and (Be) a certificate from an independent certified public accounting firm selected by Payee certifying that the present value of a series of Defeasance Collateral is sufficient to satisfy the payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of required under this Note as described above;
(vi) Maker shall deliver such other certificates, documents and on instruments as Payee may reasonably request; and
(vii) Maker shall pay all costs and expenses to Payee incurred in connection with the Maturity DateDefeasance, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as including any costs and expenses associated with a release of the date lien of such prepayment to each such Payment Date the Mortgage as provided below as well as reasonable accountants' and the Maturity Date. The term “Payment Differential” attorneys' fees and expenses.
(c) For purposes hereof, "Rating Agencies" shall mean an amount equal to mean, collectively, (i) the Note Rate less the Reinvestment YieldStandard and Poor's Rating Services, divided by (ii) twelve (12) and multiplied by Xxxxx'x Investors Service, Inc., (iii) Fitch, Inc. (or its affiliates), and (iv) any other rating agency designated by Xxxxx, and the principal sum outstanding under this Note after application respective successors and assigns of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx shall deliver to Borrower a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender shall have in good faith applied the formula described above, Borrower shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender on any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment feeeach.
Appears in 1 contract
Prepayment; Defeasance. (a) This Note may not be prepaid, in whole or in part (except as otherwise specifically provided herein), at any time prior to the Payment Date occurring three (3) Payment Dates immediately prior to the Maturity Date (the “Lockout Expiration Date”)time. In the event that Xxxxxxxx wishes to have the Security Property (as hereinafter defined) released from the lien of the Security Instrument prior to the Lockout Expiration Date(as hereinafter defined), Borrower’s 's sole option shall be a Defeasance (as hereinafter defined) upon satisfaction of the terms and conditions set forth in Section 1.5(d1.05(d) hereof. This Note may be prepaid in whole but not in part without premium or penalty on any Payment Date occurring on or after within three (3) months prior to the Lockout Expiration Maturity Date provided (i) written notice of such prepayment is received by Lender Payee not more than ninety (90) days and not less than thirty (30) days prior to the date of such prepayment, and (ii) such prepayment is accompanied by all interest accrued hereunder through and including the date of such prepayment and all other sums due hereunder or under the other Loan Documents. If, upon any such permitted prepayment on any a Payment Date occurring on or after during the Lockout Expiration three (3) months prior to the Maturity Date, the aforesaid prior written notice has not been timely received by LenderXxxxxx, there shall be due a prepayment fee equal to, an amount equal to the lesser of (i) thirty (30) days’ ' interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid and (ii) interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid that would have been payable for the period from, and including, the date of prepayment through the Maturity Date, Date of this Note as though such prepayment had not occurred.
(b) If, prior to . Notwithstanding the Lockout Expiration Date, the indebtedness evidenced by this Note shall have been declared due and payable by Lender pursuant to Article II hereof or the provisions of any other Loan Document due to a default by Xxxxxxxx, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. In addition to the amounts described in the preceding sentenceforegoing, in the event that Borrower makes a prepayment in accordance with this Section on a date other than a Payment Date such prepayment must include all interest through and including the following Payment Date. Prepayments of any such acceleration this Note shall not be permitted, except for partial or tender whole prepayments resulting from Xxxxxx's election to apply insurance or condemnation proceeds to reduce the outstanding principal balance of payment this Note as provided in the Security Instrument, in which event no prepayment fee or premium shall be due unless, at the time of either Xxxxxx's receipt of such indebtedness occurs proceeds or is made on or prior the application of such proceeds to the first (1st) anniversary of the date of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) of the outstanding principal balance of this Note. The term “Yield Maintenance Premium” , an Event of Default, or an event which, with notice or the passage of time, or both, would constitute an Event of Default, shall mean an amount equal have occurred, which default or Event of Default is unrelated to the greater of (A) two percent (2.0%) applicable casualty or condemnation, in which event the applicable prepayment fee or premium shall be due and payable based upon the amount of the prepayment. No notice of prepayment shall be required under the circumstances specified in the preceding sentence. No principal amount being prepaid, and (B) the present value repaid may be reborrowed. Any such partial prepayments of a series of payments each equal principal shall be applied to the Payment Differential (unpaid principal balance evidenced hereby but such application shall not reduce the amount of the fixed monthly installments required to be paid pursuant to Section 1.02 above except as hereinafter defined) otherwise provided in the Security Instrument. Except as otherwise expressly provided in this Section 1.05(b), the prepayment fees provided in the immediate following paragraph shall be due, to the extent permitted by applicable law, under any and payable on each Payment Date over the remaining original term all circumstances where all or any portion of this Note and on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) and multiplied by (iii) the principal sum outstanding under this Note after application of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest is paid prior to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of whether such prepayment (oris voluntary or involuntary, including, without limitation, if such bid price is not published on that dateprepayment results from Lender's exercise of its rights upon Borrower's default and acceleration of the Maturity Date of this Note (irrespective of whether foreclosure proceedings have been commenced), and shall be in addition to any other sums due hereunder or under any of the next preceding date on other Loan Documents. No tender of a prepayment of this Note with respect to which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx ue shall deliver to Borrower a statement setting forth be effective unless such prepayment is accompanied by the amount and determination of the prepayment fee, and, provided that Lender shall have in good faith applied the formula described above, Borrower shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender on any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the applicable prepayment fee.
Appears in 1 contract
Prepayment; Defeasance. (a) This Borrower shall not have the right or privilege to prepay all or any portion of the unpaid principal balance of this Note until the Monthly Payment Date which is one (1) month prior to the Maturity Date. From and after such date, provided no Event of Default exists, the principal balance of this Note may not be prepaid, in whole or but not in part part, upon: (except as otherwise specifically provided hereini) not less than fifteen (15) days prior written notice (the “Prepayment Notice”) to Lender specifying the scheduled payment date on which prepayment is to be made (the “Prepayment Date”); (ii) payment of all accrued and unpaid interest on the outstanding principal balance of this Note to and including the Prepayment Date together with a payment of all interest which would have accrued on the principal balance of this Note to and including the last day of the Accrual Period in which the Prepayment Date occurs, at if such prepayment occurs on a date which is not the eleventh (11th) day of a calendar month (the “Shortfall Interest Payment”); and (iii) payment of all other sums then due under this Note, the Security Instrument and the other Loan Documents. Lender shall not be obligated to accept any prepayment of the principal balance of this Note unless it is accompanied by all sums due in connection therewith.
(i) At any time from and after the Lockout Period Expiration Date and provided no Event of Default exists at the time, Borrower may obtain the release of the Property from the lien of the Security Instrument upon the satisfaction of the following conditions precedent:
(1) Borrower shall have provided Lender with not less than thirty (30) days and not more than sixty (60) days prior written notice specifying the date (the “Release Date”) on which the Defeasance Deposit (hereinafter defined) is to be made;
(2) Borrower shall have paid to Lender all interest accrued and unpaid on the Payment Date occurring three principal balance of this Note to and including the Release Date;
(3) Borrower shall have paid to Lender all other sums due and payable under this Note, the Security Instrument and the other Loan Documents through and including the Release Date (including, but not limited to, any Monthly Payment Dates which may be due and payable on the Release Date);
(4) Borrower shall have paid to Lender the Defeasance Deposit (hereinafter defined);
(5) The transactions contemplated by this Section 5(b) shall not cause the Loan to lose its status as a “qualified mortgage” within the meaning of Sections 860D and 860G(a)(3) of the Internal Revenue Code of 1986, as amended, or any successor statute thereto; and
(6) Borrower shall have delivered to Lender the following:
(A) a security agreement, in form and substance satisfactory to Lender, creating a first priority lien on the Defeasance Deposit and the Government Securities (hereinafter defined) purchased on behalf of Borrower with the Defeasance Deposit in accordance with the provisions of this Section 5(b) (the “Pledge Agreement”), which Pledge Agreement shall provide, among other things, that any excess payments of principal and interest received by Lender under the Government Securities over the amount needed to make payments of principal and interest and other sums due from Borrower hereunder shall be refunded to Borrower;
(B) a release of the Property from the lien of the Security Instrument (for execution by Xxxxxx) in a form appropriate for the jurisdiction in which the Property is located;
(C) an officer’s certificate of Borrower certifying that the requirements set forth in this Section 5(b) have been satisfied;
(D) a certificate by Xxxxxxxx’s independent public accountant certifying that the cash flow from the Government Securities will be sufficient to timely meet all Scheduled Defeasance Payments;
(E) an opinion of counsel for Xxxxxxxx in form satisfactory to Xxxxxx stating, among other things, that Xxxxxx will have a perfected first priority security interest in the Defeasance Deposit and the Government Securities to be purchased on behalf of Xxxxxxxx;
(F) evidence in writing from the applicable Rating Agencies (as defined in the Security Instrument) to the effect that such release will not result in a qualification, downgrade or withdrawal of any rating in effect immediately prior to such defeasance for any Securities (as defined in the Maturity Date (Security Instrument) if the “Lockout Expiration Date”). In the event that Xxxxxxxx wishes Defeasance Deposit is to have the Property be used to purchase Non-U.S. Treasury Obligations (as hereinafter defined)]; and
(G) such other certificates, documents or instruments as Lender may reasonably request. The Defeasance Deposit shall be used to purchase Government Securities which provide payments which are (A) payable on or prior to, but as close as possible to, all successive Monthly Payment Dates after the Release Date and the Maturity Date and (B) in amounts necessary to meet the scheduled payments of principal and interest due under this Note on such dates (the “Scheduled Defeasance Payments”). Borrower, pursuant to the Pledge Agreement or other appropriate documents, shall authorize and direct that the payments received from the Government Securities be made directly to Lender and applied to satisfy the obligations of the Borrower under this Note.
(ii) Upon compliance with the requirements of this Section 5(b), the Property shall be released from the lien of the Security Instrument prior to and the Lockout Expiration Date, Borrower’s sole option pledged Defeasance Deposit and the Government Securities purchased therewith shall be the sole source of collateral securing this Note. In connection with such release, Lender, or its designee, shall establish or designate a successor entity (the “Successor Borrower”) and Borrower shall transfer and assign all obligations, rights and duties under and to this Note together with the Pledge Agreement and the pledged Defeasance (as hereinafter defined) upon satisfaction of Deposit and/or Government Securities to such Successor Borrower. At the terms and conditions set forth in Section 1.5(d) hereof. This Note may be prepaid in whole but not in part without premium or penalty on any Payment Date occurring on or after the Lockout Expiration Date provided (i) written notice time of such prepayment is received by Lender not more than ninety (90) days release, such Successor Borrower shall assume the obligations of Borrower under this Note and not less than thirty (30) days prior to the date Pledge Agreement, Borrower shall be relieved of such prepaymentits rights and obligations thereunder, and (ii) such prepayment is accompanied by all interest accrued hereunder through and including references to Borrower herein or in the date of such prepayment and all other sums due hereunder or under the other Loan Documents. If, upon any such permitted prepayment on any Payment Date occurring on or after the Lockout Expiration Date, the aforesaid prior written notice has not been timely received by Lender, there Pledge Agreement shall be due a prepayment fee equal deemed to the lesser of (irefer to Successor Borrower. Borrower shall pay all costs and expenses incurred by Xxxxxx, including Xxxxxx’s attorneys’ fees and expenses and if paragraph 5(b)(i)(6)(F) thirty (30) days’ interest computed at the Note Rate on the outstanding principal balance of above is applicable, Rating Agency fees, if any, incurred in connection with this Note so prepaid and (ii) interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid that would have been payable for the period from, and including, the date of prepayment through the Maturity Date, as though such prepayment had not occurredSection 5(b).
(biii) If, prior to the Lockout Expiration DateFor purposes hereof, the indebtedness evidenced by this Note following terms shall have been declared due and payable by Lender pursuant to Article II hereof or the provisions of any other Loan Document due to a default by Xxxxxxxx, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. In addition to the amounts described in the preceding sentence, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made on or prior to the first (1st) anniversary of the date of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) of the principal balance of this Note. The term “Yield Maintenance Premium” shall mean an amount equal to the greater of (A) two percent (2.0%) of the principal amount being prepaid, and (B) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of this Note and on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) and multiplied by (iii) the principal sum outstanding under this Note after application of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx shall deliver to Borrower a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender shall have in good faith applied the formula described above, Borrower shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender on any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment fee.following meanings:
Appears in 1 contract
Samples: Promissory Note (Secured Investment Resources Fund Lp Ii)
Prepayment; Defeasance. (a) This The principal balance of this Note may not be prepaid, prepaid in whole or in part (except as otherwise specifically provided herein), at any time prior to the Payment Date occurring three (3) Payment Dates immediately prior to the Maturity Date except as expressly permitted pursuant to Section 5(l) hereof.
(b) Subject to compliance with and satisfaction of the terms and conditions of this Article 5 and provided that no Event of Default exists under this Note, Borrower may elect on any Monthly Payment Date (defined below) after the Lockout Period Expiration Date (defined below), to release (the “Lockout Expiration Date”). In the event that Xxxxxxxx wishes to have "Release") the Property (as hereinafter defined) released from the lien of the Security Instrument by delivering to Lender (a "Defeasance"), as security for the payment of all interest and principal due and to become due pursuant to this Note throughout the term hereof, Defeasance Collateral (defined below) sufficient to generate Scheduled Defeasance Payments (defined below). "Monthly Payment Date" shall mean the tenth day of each calendar month prior to the Maturity Date. "Lockout Period Expiration Date" shall mean the earlier to occur of (A) August 10, Borrower’s sole option shall be a Defeasance 2002, or (as hereinafter definedB) upon satisfaction the second anniversary of the terms "startup day" within the meaning of Section 860G(a)(9) of the IRS Code (defined below) of a REMIC Trust (defined below).
(c) As a condition precedent to a Defeasance, and conditions set forth in Section 1.5(d) hereof. This Note may be prepaid in whole but not in part without premium or penalty on prior to any Payment Date occurring on or after Release, Borrower shall have complied with all of the Lockout Expiration Date provided following:
(i) written notice of such prepayment is received by Lender not more than ninety (90) days and Borrower shall provide not less than thirty sixty (3060) days prior written notice to Lender of the date of such prepayment, and Monthly Payment Date upon which it intends to effect a Defeasance hereunder (the "Defeasance Date").
(ii) such prepayment is accompanied by all All accrued and unpaid interest accrued hereunder through and including the date of such prepayment and all other sums due hereunder or under this Note, the other Loan Documents. If, upon any such permitted prepayment on any Payment Security Instrument and the Other Security Documents up to the Defeasance Date occurring shall be paid in full on or after the Lockout Expiration Date, the aforesaid prior written notice has not been timely received by Lender, there shall be due a prepayment fee equal to the lesser of Defeasance Date.
(iiii) thirty (30) days’ interest computed at Borrower shall have delivered to Lender all necessary documents to reflect that the Note Rate on the outstanding principal balance of this Note so has been defeased. This Note shall thereafter be secured by the Defeasance Collateral delivered in connection with the Defeasance. After Defeasance, this Note cannot be prepaid in whole or in part or be the subject of any further Defeasance.
(iv) Borrower shall execute and deliver to Lender any and all certificates, opinions, documents or instruments required by Lender in connection with the Defeasance and Release, including, without limitation, a pledge and security agreement satisfactory to Lender creating a first priority lien on the Defeasance Collateral (a "Defeasance Security Agreement").
(v) Borrower shall have delivered to Lender an opinion of Borrower's counsel in form and substance satisfactory to Lender stating (A) that the Defeasance Collateral and the proceeds thereof have been duly and validly assigned and delivered to Lender and that Lender has a valid, perfected, first priority lien and security interest in the Defeasance Collateral delivered by Borrower and the proceeds thereof, and (iiB) interest computed that if the holder of this Note shall at the time of the Release be a REMIC (defined below), (1) the Defeasance Collateral has been validly assigned to the REMIC Trust which holds this Note Rate (the "REMIC Trust"), (2) the Defeasance has been effected in accordance with the requirements of Treasury Regulation 1.860(g)-2(a)(8) (as such regulation may be amended or substituted from time to time) and will not be treated as an exchange pursuant to Section 1001 of the IRS Code and (3) the tax qualification and status of the REMIC Trust as a REMIC will not be adversely affected or impaired as a result of the Defeasance. The term "REMIC" shall mean a "real estate mortgage investment conduit" within the meaning of Section 860D of the IRS Code. "IRS Code" shall mean the United States Internal Revenue Code of 1986, as amended, and the related Treasury Department regulations, including temporary regulations.
(vi) Borrower shall have delivered to Lender written confirmation from the Rating Agencies (defined in the Security Instrument) that such Defeasance will not result in a withdrawal, downgrade or qualification of the then current ratings by the applicable Rating Agencies of the Securities (defined in the Security Instrument). If required by the Rating Agencies, Borrower shall, at Borrower's expense, also deliver or cause to be delivered a non-consolidation opinion with respect to the Defeasance Obligor (as defined below) in form and substance satisfactory to Lender and the Rating Agencies.
(vii) Borrower shall have delivered to Lender a certificate satisfactory to Lender given by Borrower's independent certified public accountant (which accountant shall be reasonably satisfactory to Lender) certifying that the Defeasance Collateral shall generate monthly amounts equal to or greater than the Scheduled Defeasance Payments required to be paid under this Note through and including the Maturity Date.
(d) In connection with any Defeasance hereunder, Borrower shall (unless otherwise agreed to in writing by Lender), at Borrower's expense, establish or designate a successor entity, which shall be a single purpose, bankruptcy remote entity approved by Lender, as such term is described in Section 4.2 of the Security Instrument (the "Defeasance Obligor") and Borrower shall transfer and assign all obligations, rights and duties under and to this Note together with the pledged Defeasance Collateral to such Defeasance Obligor. Such Defeasance Obligor shall assume the obligations under this Note and any Defeasance Security Agreement, and Borrower shall be relieved of its obligations under such documents and, except with respect to any provisions of the Note, the Security Instrument or the Other Security Documents which by their terms expressly survive payment of the Debt in full, the Note, the Security Instrument or the Other Security Documents.
(e) Each of the obligations of the United States of America that is part of the Defeasance Collateral shall be duly endorsed by the holder thereof as directed by Lender or accompanied by a written instrument of transfer in form and substance wholly satisfactory to Lender (including, without limitation, such instruments as may be required by the depository institution holding such securities or by the issuer thereof, as the case may be, to effectuate book-entry transfers and pledges through the book-entry facilities of such institution) in order to perfect upon the delivery of the Defeasance Collateral a first priority security interest therein in favor of the Lender in conformity with all applicable state and federal laws governing the granting of such security interests. Borrower shall authorize and direct that the payments received from such obligations shall be made directly to Lender or Lender's designee and applied to satisfy the obligations of Borrower or, if applicable, the Defeasance Obligor, under this Note.
(f) The Defeasance Collateral shall generate payments on or prior to, but as close as possible to, the Business Day (defined below) prior to each successive Monthly Payment Date after the date of the Defeasance upon which payments are required under this Note and in amounts equal to or greater than the payments due on such dates (including, without limitation scheduled payments of principal, interest, servicing fees (if any) and any other regularly scheduled amounts due under this Note, the Security Instrument or the Other Security Documents on such dates) together with the outstanding principal balance amount of this Note so prepaid that which would have been payable for the period from, and including, the date of prepayment through be due on the Maturity DateDate (the "Scheduled Defeasance Payments"). The term "Business Day" shall mean a day upon which commercial banks are not authorized or required by law to close in New York, as though such prepayment had not occurredNew York.
(bg) IfNotwithstanding any release of the Security Instrument granted pursuant to this Article 5 or any Defeasance hereunder, prior the Defeasance Obligor shall, and hereby agrees to be, bound by and obligated under Sections 3.1, 7.2, 7.4(a), 11.2, 11.7 and 14.2 and Articles 13 and 15 of the Security Instrument; provided, however, that all references therein to "Property" or "Personal Property" shall be deemed to refer only to the Lockout Expiration DateDefeasance Collateral delivered to Lender.
(h) Any costs or expenses incurred or to be incurred in connection with the Defeasance and any revenue, the indebtedness evidenced by this Note shall have been declared due and payable by Lender pursuant to Article II hereof documentary stamp or the provisions of intangible taxes or any other Loan Document tax or charge due to a default by Xxxxxxxx, then, in addition to connection with the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. In addition to the amounts described in the preceding sentence, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made on or prior to the first (1st) anniversary of the date transfer of this Note, there or otherwise required to accomplish the Defeasance shall also then be immediately due paid by Borrower simultaneously with the occurrence of any Defeasance.
(i) The term "Defeasance Collateral" as used herein shall mean non-callable and payable non-redeemable securities evidencing an additional prepayment fee of three percent (3%) obligation to timely pay principal and interest in a full and timely manner that are direct obligations of the principal balance United States of this NoteAmerica for the payment of which its full faith and credit is pledged.
(j) Upon Borrower's compliance with all of the conditions to Defeasance and a Release set forth in Article 5(b) through (i), Lender shall release the Property from the lien of the Security Instrument and the Other Security Documents. The term “Yield Maintenance Premium” All costs and expenses of Lender incurred in connection with the Defeasance and Release, including, without limitation, Lender's counsel's reasonable fees and expenses, shall mean be paid by Borrower simultaneously with the delivery of the Release documentation.
(k) If a Default Prepayment (defined below) occurs, Borrower shall pay to Lender the entire Debt, including, without limitation, an amount (the "Default Consideration") equal to the greater of (A) two percent (2.0%) of the principal amount being prepaid, and (B) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of this Note and on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less amount (if any) which, when added to the Reinvestment Yield, divided by (ii) twelve (12) and multiplied by (iii) the outstanding principal sum outstanding under this Note after application amount of the constant monthly payment due under this Note on will be sufficient to purchase Defeasance Collateral providing the date of such prepayment, provided that the Payment Differential shall in no event required Scheduled Defeasance Payments assuming Defeasance would be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Datepermitted hereunder, or (ii) the yield on the U.S. Treasury issue one percent (primary issue1%) with a term equal to the remaining average life of the indebtedness evidenced by Default Prepayment. For purposes of this Note, the term "Default Prepayment" shall mean a prepayment of the principal amount of this Note made after the acceleration of the Maturity Date under any circumstances, including, without limitation, a prepayment occurring after an Event of Default or in connection with each such yield being based on reinstatement of the bid price for such issue as published Security Instrument provided by statute under foreclosure proceedings or exercise of a power of sale, any statutory right of redemption exercised by Borrower or any other party having a statutory right to redeem or prevent foreclosure, any sale in foreclosure or under exercise of a power of sale or otherwise.
(l) Notwithstanding anything to the Wall Street Journal on contrary herein, provided no Event of Default exists under this Note, the date that is fourteen Security Instrument or the Other Security Documents, (14i) days Borrower may prepay the principal balance of this Note in whole during the three (3) months prior to the Maturity Date and no prepayment consideration shall be due in connection therewith, but Borrower shall be required to pay all other sums due hereunder together with all interest which would have accrued on the principal balance of this Note after the date of such prepayment to the next Monthly Payment Date (orthe "Interest Shortfall Payment"), if such bid price prepayment occurs on a date which is not published on that datea Monthly Payment Date; and (ii) if a complete or partial prepayment results from the application of insurance proceeds or condemnation awards pursuant to Sections 3.3, 3.6 or 4.3 of the next preceding date on which such bid price is so published) and converted Security Instrument, no prepayment consideration or Default Consideration shall be due in connection therewith, but Borrower shall be required to a monthly compounded nominal yield. In the event that any prepayment fee is pay all other sums due hereunder, Xxxxxx shall deliver to Borrower a statement setting forth including, without limitation, the amount and determination of the prepayment feeInterest Shortfall Payment, and, provided that Lender shall have in good faith applied the formula described above, Borrower shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender on any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment feeif applicable.
Appears in 1 contract
Samples: Open End Mortgage and Security Agreement (Associated Estates Realty Corp)
Prepayment; Defeasance. (a) This Note may not be prepaid, in whole or in part (except as otherwise specifically provided hereinherein or in the other Loan Documents), at any time prior to the Payment Date occurring three (3) Payment Dates immediately prior to the Maturity Date (the “Lockout Expiration Date”)time. In the event that Xxxxxxxx wishes to have the Security Property (as hereinafter defined) released from the lien of the Security Instrument prior to the Lockout Expiration Date(as hereinafter defined), Borrower’s Xxxxxxxx's sole option shall be a Defeasance (as hereinafter defined) upon satisfaction of the terms and conditions set forth in Section 1.5(dSubsection 1.05(c) hereof. This Notwithstanding anything contained herein to the contrary, this Note may be prepaid in whole but not in part part, without premium or penalty on any Payment Date occurring on or after the Lockout Expiration date which is within three (3) months prior to the Maturity Date provided (i) written notice of such prepayment is received by Lender not more than ninety (90) days and not less than thirty (30) days prior to the anticipated date of such prepaymentprepayment (and Lender does not receive a written rescission of such notice from Borrower), and (ii) such prepayment is accompanied by all interest accrued hereunder through and including the date of such prepayment and all other sums due hereunder or under the other Loan Documents, provided however that if such prepayment occurs on any day other than a scheduled Payment Date, then such prepayment shall be accompanied by all interest that would have accrued hereunder until the next scheduled Payment Date (or until the Maturity Date, if there is no scheduled Payment Date remaining) as if such prepayment had not occurred. If, upon any such permitted prepayment on any Payment Date occurring on or after within the Lockout Expiration three (3) months prior to the Maturity Date, the aforesaid prior written notice has not been timely received by Lender, there shall be due a prepayment fee in an amount equal to the lesser of (i) thirty (30) days’ ' interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid and (ii) interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid that would have been payable for the period from, and including, the date of prepayment through the Maturity Date, Date of this Note as though such prepayment had not occurred.
(b) IfExcept as described above, prior to the Lockout Expiration Date, the indebtedness evidenced by partial or entire prepayments of this Note shall have been declared due not be permitted, except for partial and payable by Lender entire prepayments resulting from Xxxxxx's election to apply insurance or condemnation proceeds to reduce the outstanding principal balance of this Note as provided in the Security Instrument or as a result of Xxxxxx's acceleration of the Loan pursuant to Article II hereof Section 15 or 16 of the provisions of any other Loan Document due to a default by Xxxxxxxx, thenSecurity Instrument, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a which event no prepayment fee in an amount equal to or premium shall be due. No notice of prepayment shall be required under the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. In addition to the amounts described circumstances specified in the preceding sentence. No principal amount repaid may be reborrowed. Any such partial prepayments of principal shall be applied to the unpaid principal balance evidenced hereby. Except as otherwise expressly provided in this Section 1.05, the prepayment fees provided in the event of any such acceleration or tender of payment of such indebtedness occurs or is made on or prior immediate following paragraph shall be due, to the first (1st) anniversary of the date of this Noteextent permitted by applicable law, there shall also then be immediately due under any and payable an additional prepayment fee of three percent (3%) of the principal balance of this Note. The term “Yield Maintenance Premium” shall mean an amount equal to the greater of (A) two percent (2.0%) of the principal amount being prepaid, and (B) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term all circumstances where all or any portion of this Note and on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) and multiplied by (iii) the principal sum outstanding under this Note after application of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest is paid prior to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of whether such prepayment (oris voluntary or involuntary, including, without limitation, if such bid price is not published on that dateprepayment results from Lender's exercise of its rights upon Borrower's default and acceleration of the Maturity Date of this Note (irrespective of whether foreclosure proceedings have been commenced), and shall be in addition to any other sums due hereunder or under any of the next preceding date on other Loan Documents. No tender of a prepayment of this Note with respect to which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx shall deliver to Borrower a statement setting forth be effective unless such prepayment is accompanied by the amount and determination of the prepayment fee, and, provided that Lender shall have in good faith applied the formula described above, Borrower shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender on any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the applicable prepayment fee.
Appears in 1 contract
Prepayment; Defeasance. (ai) This Note may not be prepaid, The Loan is closed to prepayment in whole or in part (except as otherwise specifically provided herein)during the Prepayment/Defeasance Lockout Period. Thereafter, at any time prior to the Payment Date occurring three (3) Payment Dates immediately prior to the Maturity Date (the “Lockout Expiration Date”). In the event that Xxxxxxxx wishes to have the Property (as hereinafter defined) released from the lien of the Security Instrument prior to the Lockout Expiration Date, Borrower’s sole option shall be a Defeasance (as hereinafter defined) upon satisfaction of the terms and conditions set forth in Section 1.5(d) hereof. This Note may be prepaid in whole but not in part without premium or penalty on any Payment Date occurring on or after the Lockout Expiration Date provided (i) written notice of such prepayment is received by Lender not more than ninety (90) days and not less than thirty (30) days prior to the date of such prepayment, and (ii) such prepayment is accompanied by all interest accrued hereunder through and including the date of such prepayment and all other sums due hereunder or under the other Loan Documents. If, upon any such permitted prepayment on any Payment Date occurring on or after the Lockout Expiration Date, the aforesaid days’ prior written notice has not been timely received by to Lender, there shall be due Borrower may prepay the Loan, in whole but not in part, on any scheduled monthly payment date and upon payment of: (x) all amounts outstanding under the Loan Documents; and (y) a prepayment fee equal to the lesser of (i) thirty (30) days’ interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid and (ii) interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid that would have been payable for the period from, and including, the date of prepayment through the Maturity Date, as though such prepayment had not occurred.
(b) If, prior to the Lockout Expiration Date, the indebtedness evidenced by this Note shall have been declared due and payable by Lender pursuant to Article II hereof or the provisions of any other Loan Document due to a default by Xxxxxxxx, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. In addition to the amounts described in the preceding sentence, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made on or prior to the first (1st) anniversary of the date of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) of the principal balance of this Note. The term “Yield Maintenance Premium” shall mean an amount premium equal to the greater of (A) two one percent (2.01%) of the outstanding principal amount being prepaid, and balance of the Loan or (B) the present value Yield Maintenance Amount (except that no such prepayment premium shall be due or payable if the Loan is repaid on or after the sixtieth (60th) monthly installment of interest (which for purposes of this provision, shall not include the payment of interest on the Closing Date) due hereunder.
(ii) Provided no Event of Default exists, following the Prepayment/ Defeasance Lockout Period, Borrower may obtain the release of the Project from the lien of the Mortgage in accordance with the terms and provisions of Schedule II attached hereto (the “Defeasance Option”).
(iii) If the Loan is accelerated for any reason other than casualty or condemnation, and the Loan is otherwise closed to prepayment, Borrower shall pay, in addition to all other amounts outstanding under the Loan Documents, a series of payments each prepayment premium equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term sum of this Note and on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less Yield Maintenance Amount, if any, that would be required under the Reinvestment Yield, divided by Defeasance Option and (ii) twelve five percent (125%) of the outstanding principal balance of the Loan. If for any reason the Loan is prepaid on a day other than a Monthly Payment Date, the Borrower shall pay, in addition to the principal, interest and multiplied by (iii) the principal sum outstanding premium, if any, required under this Note after application of the constant monthly payment due under this Note on the date of such prepaymentSection, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield interest that would have accrued on the U.S. Treasury issue (primary issue) with a maturity date closest to Loan at the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to Contract Rate from the date of such prepayment (or, if such bid price is not published on that date, to the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yieldMonthly Payment Date. In the event that any of a prepayment fee is due hereunderresulting from Lender’s application of insurance or condemnation proceeds pursuant to Article 3 hereof, Xxxxxx shall deliver to Borrower a statement setting forth the amount and determination of the no prepayment fee, and, provided that Lender shall have in good faith applied the formula described above, Borrower shall not have the right to challenge the calculation penalty or premium or the method of calculation set forth in any such statement in requirement to defease the absence of manifest error, which calculation may Loan shall be made by Lender on any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment feeimposed.
Appears in 1 contract
Prepayment; Defeasance. (a) This The principal balance of this Note may not be prepaid, prepaid in whole or in part (except as otherwise specifically provided herein), at any time prior to the Payment Date occurring three date which is sixty (360) Payment Dates immediately calendar days prior to the Maturity Date Date.
(b) After the date which is the earlier to occur of (i) the second (2nd) anniversary of the "start-up day" (within the meaning of Section 860G(a)(9) of the Internal Revenue Code of 1986, as amended from time to time, or any successor statute (the “Lockout Expiration Date”"Code"). In the event that Xxxxxxxx wishes to have the Property (as hereinafter defined) released from the lien ), of the Security Instrument "real estate investment conduit" ("REMIC") that then holds this Note or (ii) the fourth (4th) anniversary of the date of this Note, and prior to the Lockout Expiration date which is sixty (60) calendar days prior to the Maturity Date, Borrower’s sole option shall be a Defeasance (as hereinafter defined) upon satisfaction of Maker may voluntarily defease the terms and conditions set forth Debt in Section 1.5(d) hereof. This Note may be prepaid in whole whole, but not in part without premium or penalty on (such event, a "Defeasance"), by providing Payee with the Defeasance Collateral (as defined below) producing payments which replicate the Scheduled Defeasance Payments (as defined below), provided that any Payment Date occurring on or after Defeasance by Maker shall be subject to the Lockout Expiration Date provided satisfaction of the following conditions precedent and other provisions below:
(i) written notice of such prepayment is received by Lender not more than ninety (90) days and Maker shall provide not less than thirty (30) days prior written notice to Payee specifying a regularly scheduled payment date (the date "Defeasance Date") on which the Defeasance is to occur. Such notice shall indicate the principal amount of such prepayment, and this Note to be defeased;
(ii) Maker shall pay to Payee all accrued and unpaid interest on the principal balance of this Note to, but not including, the Defeasance Date. If for any reason the Defeasance Date is not a regularly scheduled payment date, Maker shall also pay interest that would have accrued on this Note through the next regularly scheduled payment date;
(iii) Maker shall pay to Payee all other sums, not including scheduled interest or principal payments, due under this Note, the Mortgage, and the other Loan Documents;
(iv) Maker shall pay to Payee an amount equal to the full principal amount of this Note together with an additional amount such prepayment that the aggregate amount (the "Defeasance Deposit") is accompanied by at least sufficient to purchase direct, non-callable obligations of the United States of America (the "Defeasance Collateral") that provide payments on or prior to, but as close as possible to, all successive scheduled payment dates after the Defeasance Date upon which interest accrued hereunder and/or principal payments are due under this Note through and including the date of such prepayment Maturity Date and all other sums due hereunder or under the other Loan Documents. If, upon any such permitted prepayment on any Payment Date occurring on or after the Lockout Expiration Date, the aforesaid prior written notice has not been timely received by Lender, there shall be due a prepayment fee in amounts equal to the lesser of (i) thirty (30) days’ interest computed at scheduled payments due on such dates, including, on the Note Rate on Maturity Date, the outstanding principal balance of this Note so prepaid Note, together with all interest accrued thereon and (ii) interest computed at the Note Rate on the outstanding principal balance of all other sums then due and owing upon this Note so prepaid that would have been payable for and under the period from, and including, Loan Documents (the date of prepayment through the Maturity Date, as though such prepayment had not occurred."Scheduled Defeasance Payments");
(bv) If, prior Maker shall deliver to the Lockout Expiration Date, the indebtedness evidenced by this Note shall have been declared due and payable by Lender pursuant to Article II hereof or the provisions of any other Loan Document due to a default by Xxxxxxxx, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. In addition to the amounts described in the preceding sentence, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made Payee on or prior to the Defeasance Date the following: (a) an executed security agreement, in form and substance satisfactory to Payee, creating a first priority lien on the Defeasance Deposit and the Defeasance Collateral (1stthe "Defeasance Security Agreement"); (b) anniversary an opinion of counsel for Maker in form and substance satisfactory to Payee in its sole discretion stating, among other things, that Maker has legally and validly transferred and assigned the Defeasance Collateral and all obligations, rights and duties under and to this Note to the Successor Borrower (as defined below); that Payee has a perfected first priority security interest in the Defeasance Deposit and the Defeasance Collateral delivered by Maker, and that any REMIC trust formed pursuant to Section 860D of the date Code that holds this Note will not fail to maintain its status as a REMIC within the meaning of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) Section 860D of the principal balance Code as a result of such Defeasance; (c) a certificate of Maker certifying that all requirements relating to defeasance set forth in this Note. The term “Yield Maintenance Premium” shall mean an amount equal Note and any other Loan Documents have been satisfied; (d) evidence in writing from each of the Rating Agencies (as defined below) to the greater effect that the Defeasance will not result in a qualification, downgrade or withdrawal of any rating in effect immediately prior to the Defeasance Date for any securities or "Pass-Through Certificates" issued pursuant to the terms of a trust and servicing agreement in the event that this Note or any interest therein is included in a REMIC or other securitization vehicle; (Ae) two percent a certificate from an independent certified public accounting firm selected by Payee certifying that the Defeasance Collateral is sufficient to satisfy the payments required under this Note as described above; and (2.0%f) such other certificates or instruments and Payee may reasonably request;
(vi) Maker shall deliver such other certificates, documents and instruments as Payee may reasonably request; and
(vii) Maker shall pay all costs and expenses to Payee incurred in connection with the Defeasance, including any costs and expenses associated with a release of the principal amount being prepaidlien of the Mortgage as provided below as well as reasonable accountants' and attorneys' fees and expenses.
(c) For purposes hereof, "Rating Agencies" shall mean, collectively, (i) Standard and Poor's Rating Services, (ii) Xxxxx'x Investors Service, Inc., (iii) Fitch, Inc. (or its affiliates), and (Biv) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of this Note and on the Maturity Dateany other rating agency designated by Xxxxx, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) respective successors and multiplied by (iii) the principal sum outstanding under this Note after application assigns of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx shall deliver to Borrower a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender shall have in good faith applied the formula described above, Borrower shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender on any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment feeeach.
Appears in 1 contract
Samples: Fixed Rate Note (Ramco Gershenson Properties Trust)
Prepayment; Defeasance. (a) This Note may not be prepaid, in whole or in part (except as otherwise specifically provided herein), at any time prior to the Payment Date occurring three (3) Payment Dates immediately prior to the Maturity Date (the “Lockout Expiration Date”). In the event that Xxxxxxxx wishes to have the Property (as hereinafter defined) released from the lien of the Security Instrument prior to the Lockout Expiration Date, Borrower’s sole option shall be a Defeasance (as hereinafter defined) upon satisfaction of the terms and conditions set forth in Section 1.5(d) hereof. This Note may be prepaid in whole but not in part without premium or penalty on any Payment Date occurring on or after the Lockout Expiration Date provided (i) written notice of such prepayment is received by Lender not more than ninety (90) days and not less than thirty (30) days prior to the date of such prepayment, and (ii) such prepayment is accompanied by all interest accrued hereunder through and including the date of such prepayment and all other sums due hereunder or under the other Loan Documents. If, upon any such permitted prepayment on any Payment Date occurring on or after the Lockout Expiration Date, the aforesaid prior written notice has not been timely received by Lender, there shall be due a prepayment fee equal to the lesser of (i) thirty (30) days’ interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid and (ii) interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid that would have been payable for the period from, and including, the date of prepayment through the Maturity Date, as though such prepayment had not occurred.
(b) If, prior to the Lockout Expiration Date, the indebtedness evidenced by this Note shall have been declared due and payable by Lender pursuant to Article II hereof or the provisions of any other Loan Document due to a default by Xxxxxxxx, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. In addition to the amounts described in the preceding sentence, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made on or prior to the first (1st) anniversary of the date of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) of the principal balance of this Note. The term “Yield Maintenance Premium” shall mean an amount equal to the greater of (A) two percent (2.0%) of the principal amount being prepaid, and (B) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of this Note and on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) and multiplied by (iii) the principal sum outstanding under this Note after application of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx shall deliver to Borrower a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender shall have in good faith applied the formula described above, Borrower shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender on any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment fee. All sums and fees payable to Lender provided for in this Section 1.6(b) are subject to reduction, if and to the extent characterized as interest under applicable law, by the amount (if any) which would cause interest under this Note to exceed the Maximum Lawful Rate.
Appears in 1 contract
Prepayment; Defeasance. (a) This Note may not be prepaid, in whole or in part (except as otherwise specifically provided herein), at any time prior to the Payment Date occurring three (3) Payment Dates immediately prior to the Maturity Date (the “Lockout Expiration Date”)time. In the event that Xxxxxxxx Maker wishes to have the Security Property (as hereinafter defined) released from the lien of the Security Instrument prior to the Lockout Expiration Date(as hereinafter defined), BorrowerMaker’s sole sale option shall be a Defeasance (as hereinafter defined) upon satisfaction of the terms and conditions set forth in Section 1.5(dl.5(d) hereof. This Note may be prepaid in whole but not in part without premium or penalty on any either of the three (3) Payment Date Dates occurring on or after immediately prior to the Lockout Expiration Maturity Date provided (i) written notice of such prepayment is received by Lender Payee not more than ninety (90) days and not less than thirty (30) days prior to the date of such prepayment, and (ii) such prepayment is accompanied by all interest accrued hereunder through and including the date of such prepayment and all other sums due hereunder or under the other Loan Documents. If, upon any such permitted prepayment on any either of the three (3) Payment Date Dates occurring on or after immediately prior to the Lockout Expiration Maturity Date, the aforesaid prior written notice has not been timely received by LenderPayee, there shall be due a prepayment fee equal to, an amount equal to the lesser of (i) thirty (30) days’ interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid and (ii) interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid that would have been payable for the period from, and including, the date of prepayment through the Maturity Date, Date of this Note as though such prepayment had not occurred.
(b) If, prior to the third (3rd) anniversary of the First Payment Date (the “Lockout Expiration Date”), the indebtedness evidenced by this Note shall have been declared due and payable by Lender Payee pursuant to Article II hereof or the provisions of any other Loan Document due to a default by XxxxxxxxMaker, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a sum equal to the interest which would have accrued on the principal balance of this Note at the Note Rate from the date of such acceleration to the Lock-out Expiration Date, together with a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. If such acceleration is on or following the Lock-out Expiration Date, the Yield Maintenance Premium shall also then be immediately due and payable as though Maker were prepaying the entire indebtedness on the date of such acceleration. In addition to the amounts described in the two preceding sentencesentences, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made on or prior to the first (1st) anniversary of the date of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) of the principal balance of this Note. The term “Yield Maintenance Premium” shall mean an amount equal to the greater of (A) two percent (2.0%) of (the principal amount being prepaid, and (B) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of this Note and on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) and multiplied by (iii) the principal sum outstanding under this Note after application of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx shall deliver to Borrower a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender shall have in good faith applied the formula described above, Borrower shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender on any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment fee.such
Appears in 1 contract
Samples: Promissory Note (Inland Western Retail Real Estate Trust Inc)
Prepayment; Defeasance. (a) This Note may not be prepaid, in whole or in part (except as otherwise specifically provided herein), at any time prior to the Payment Date occurring three two (32) Payment Dates immediately prior to the Maturity Date (the “Lockout Expiration Date”). In the event that Xxxxxxxx Bxxxxxxx wishes to have the Property (as hereinafter defineddefined in the Security Instrument) released from the lien of the Security Instrument (as hereinafter defined) prior to the Lockout Expiration Date, Borrower’s sole option shall be a Defeasance (as hereinafter defined) upon satisfaction of the terms and conditions set forth in Section 1.5(d) hereof. This Notwithstanding anything contained in this Note or any of the other Loan Documents to the contrary, this Note may be prepaid in whole but not in part without premium or penalty on any Payment Date (subject to the proviso below) occurring on or from and after the Lockout Expiration Date provided (i) written notice of such prepayment is received by Lender not more than ninety (90) days and not less than thirty (30) days prior to the date of such prepayment, and (ii) such prepayment is accompanied by all interest accrued hereunder through and including the date of such prepayment and all other sums due hereunder or under the other Loan Documents; provided, however, that if such prepayment is received on a day that is not a Payment Date, Borrower shall pay interest on the outstanding principal balance hereof immediately preceding such prepayment at the Note Rate for a period from the date of such payment through and including the tenth (10th) day of either (x) the month in which the prepayment occurs if such payment is made prior to the 11th day of such month, and (y) the immediately succeeding month in which the prepayment occurs if such payment is made after the 11th day of such month. If, upon any such permitted prepayment on any Payment Date occurring on or after the Lockout Expiration Date, the aforesaid prior written notice has not been timely received by Lender, there shall be due a prepayment fee equal to the lesser of (i) thirty (30) days’ interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid and (ii) interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid that would have been payable for the period from, and including, the date of prepayment through the Maturity Date, as though such prepayment had not occurred.
(b) If, prior to the Lockout Expiration Date, the indebtedness evidenced by this Note shall have been declared due and payable by Lender pursuant to Article II hereof or the provisions of any other Loan Document due to a default an Event of Default by XxxxxxxxBorrower, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. In addition to the amounts described in the preceding sentence, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made on or prior to the first (1st) anniversary of the date of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) of the principal balance of this Note. The term “Yield Maintenance Premium” shall mean an amount equal to the greater of (A) two percent (2.0%) of the principal amount being prepaid, and (B) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of this Note and on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) and multiplied by (iii) the principal sum outstanding under this Note after application of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx Lxxxxx shall deliver to Borrower a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender shall have in good faith applied the formula described above, Borrower shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender on any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment fee.
Appears in 1 contract
Samples: Promissory Note (Lightstone Value Plus Real Estate Investment Trust, Inc.)
Prepayment; Defeasance. (a) This The principal balance of this Note may not be prepaid, prepaid in whole or in part (except as otherwise specifically provided herein), at any time prior to the Payment Date occurring three date which is sixty (360) Payment Dates immediately calendar days prior to the Maturity Date Date.
(b) After the date which is the earlier to occur of (i) the second (2nd) anniversary of the "start-up day" (within the meaning of Section 860G(a)(9) of the Internal Revenue Code of 1986, as amended from time to time, or any successor statute (the “Lockout Expiration Date”"Code"). In the event that Xxxxxxxx wishes to have the Property (as hereinafter defined) released from the lien ), of the Security Instrument "real estate investment conduit" ("REMIC") that then holds this Note or (ii) the fourth (4th) anniversary of the date of this Note, and prior to the Lockout Expiration date which is sixty (60) calendar days prior to the Maturity Date, Borrower’s sole option shall be a Defeasance (as hereinafter defined) upon satisfaction of Maker may voluntarily defease the terms and conditions set forth Debt in Section 1.5(d) hereof. This Note may be prepaid in whole whole, but not in part without premium or penalty on (except as provided in Section 5A below) (such event, a "Defeasance"), by providing Payee with the Defeasance Collateral (as defined below) producing payments which replicate the Scheduled Defeasance Payments (as defined below), provided that any Payment Date occurring on or after Defeasance by Maker shall be subject to the Lockout Expiration Date provided satisfaction of the following conditions precedent and other provisions below:
(i) written notice of such prepayment is received by Lender not more than ninety (90) days and Maker shall provide not less than thirty (30) days prior written notice to Payee specifying a regularly scheduled payment date (the date "Defeasance Date") on which the Defeasance is to occur. Such notice shall indicate the principal amount of such prepayment, and this Note to be defeased;
(ii) Maker shall pay to Payee all accrued and unpaid interest on the principal balance of this Note to, but not including, the Defeasance Date. If for any reason the Defeasance Date is not a regularly scheduled payment date, Maker shall also pay interest that would have accrued on this Note through the next regularly scheduled payment date;
(iii) Maker shall pay to Payee all other sums, not including scheduled interest or principal payments, due under this Note, the Mortgage, and the other Loan Documents;
(iv) Maker shall pay to Payee an amount equal to the full principal amount of this Note together with an additional amount such prepayment that the aggregate amount (the "Defeasance Deposit") is accompanied by at least sufficient to purchase direct, non-callable obligations of the United States of America (the "Defeasance Collateral") that provide payments on or prior to, but as close as possible to, all successive scheduled payment dates after the Defeasance Date upon which interest accrued hereunder and/or principal payments are due under this Note through and including the date of such prepayment Maturity Date and all other sums due hereunder or under the other Loan Documents. If, upon any such permitted prepayment on any Payment Date occurring on or after the Lockout Expiration Date, the aforesaid prior written notice has not been timely received by Lender, there shall be due a prepayment fee in amounts equal to the lesser of (i) thirty (30) days’ interest computed at scheduled payments due on such dates, including, on the Note Rate on Maturity Date, the outstanding principal balance of this Note so prepaid Note, together with all interest accrued thereon and (ii) interest computed at the Note Rate on the outstanding principal balance of all other sums then due and owing upon this Note so prepaid that would have been payable for and under the period from, and including, Loan Documents (the date of prepayment through the Maturity Date, as though such prepayment had not occurred."Scheduled Defeasance Payments");
(bv) If, prior Maker shall deliver to the Lockout Expiration Date, the indebtedness evidenced by this Note shall have been declared due and payable by Lender pursuant to Article II hereof or the provisions of any other Loan Document due to a default by Xxxxxxxx, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. In addition to the amounts described in the preceding sentence, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made Payee on or prior to the Defeasance Date the following: (a) an executed security agreement, in form and substance reasonably satisfactory to Payee, creating a first priority lien on the Defeasance Deposit and the Defeasance Collateral (1stthe "Defeasance Security Agreement"); (b) anniversary an opinion of counsel for Maker in form and substance reasonably satisfactory to Payee in its sole discretion stating, among other things, that Maker has legally and validly transferred and assigned the Defeasance Collateral and all obligations, rights and duties under and to this Note to the Successor Borrower (as defined below); that Payee has a perfected first priority security interest in the Defeasance Deposit and the Defeasance Collateral delivered by Maker, and that any REMIC trust formed pursuant to Section 860D of the date Code that holds this Note will not fail to maintain its status as a REMIC within the meaning of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) Section 860D of the principal balance Code as a result of such Defeasance; (c) a certificate of Maker certifying that all requirements relating to defeasance set forth in this Note. The term “Yield Maintenance Premium” shall mean an amount equal Note and any other Loan Documents have been satisfied; (d) evidence in writing from each of the Rating Agencies (as defined below) to the greater effect that the Defeasance will not result in a qualification, downgrade or withdrawal of any rating in effect immediately prior to the Defeasance Date for any securities or "Pass-Through Certificates" issued pursuant to the terms of a trust and servicing agreement in the event that this Note or any interest therein is included in a REMIC or other securitization vehicle; and (Ae) two percent a certificate from an independent certified public accounting firm selected by Payee certifying that the Defeasance Collateral is sufficient to satisfy the payments required under this Note as described above;
(2.0%vi) Maker shall deliver such other certificates, documents and instruments as Payee may reasonably request; and
(vii) Maker shall pay all costs and expenses to Payee incurred in connection with the Defeasance, including any costs and expenses associated with a release of the principal amount being prepaidlien of the Mortgage as provided below as well as reasonable accountants' and attorneys' fees and expenses.
(c) For purposes hereof, "Rating Agencies" shall mean, collectively, (i) Standard and Poor's Rating Services, (ii) Xxxxx'x Investors Service, Inc., (iii) Fitch, Inc. (or its affiliates), and (Biv) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of this Note and on the Maturity Dateany other rating agency designated by Xxxxx, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) respective successors and multiplied by (iii) the principal sum outstanding under this Note after application assigns of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx shall deliver to Borrower a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender shall have in good faith applied the formula described above, Borrower shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender on any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment feeeach.
Appears in 1 contract
Prepayment; Defeasance. (a) This Note may not be prepaid, in whole or in part (except as otherwise specifically provided herein), at any time prior to the Payment Date occurring last three (3) Payment Dates occurring immediately prior to the Maturity Date (the “Lockout Expiration Date”). In the event that Xxxxxxxx Maker wishes to have the Security Property (as hereinafter defined) released from the lien of the Security Instrument (as hereinafter defined) prior to the Lockout Expiration last three (3) Payment Dates occurring immediately prior to the Maturity Date, BorrowerMaker’s sole option shall be a Defeasance (as hereinafter defined) upon satisfaction of the terms and conditions set forth in Section 1.5(d) hereof. This Note may be prepaid in whole but not in part without premium or penalty on any Payment Date occurring on or after the Lockout Expiration last three (3) Payment Dates occurring immediately prior to the Maturity Date provided (i) written notice of such prepayment is received by Lender Payee not more than ninety (90) days and not less than thirty (30) days prior to the date of such prepayment, and (ii) such prepayment is accompanied by all interest accrued hereunder through and including the date of such prepayment and all other sums due hereunder or under the other Loan Documents. If, upon any such permitted prepayment on any Payment Date occurring on or after the Lockout Expiration last three (3) Payment Dates occurring immediately prior to the Maturity Date, the aforesaid prior written notice has not been timely received by LenderPayee, there shall be due a prepayment fee equal to, an amount equal to the lesser of (i) thirty (30) days’ interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid and (ii) interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid that would have been payable for the period from, and including, the date of prepayment through the Maturity Date, Date of this Note as though such prepayment had not occurred.
(b) If, prior to the day immediately following the date which is two (2) years after the “startup day,” within the meaning of Section 860G(a) (9) of the Internal Revenue Code of 1986, as amended from time to time or any successor statute (the “Code”), of a “real estate mortgage investment conduit,” within the meaning of Section 860D of the Code (a “REMIC Trust”), that holds this Note (the “Lockout Expiration Date”), the indebtedness evidenced by this Note shall have been declared due and payable by Lender Payee pursuant to Article II hereof or the provisions of any other Loan Document due to a default the existence of an Event of Default by XxxxxxxxMaker, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a sum equal to the interest which would have accrued on the principal balance of this Note at the Note Rate from the date of such acceleration to the Lock-out Expiration Date, together with a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. If such acceleration is on or following the Lock-out Expiration Date, the Yield Maintenance Premium shall also then be immediately due and payable as though Maker were prepaying the entire indebtedness on the date of such acceleration. In addition to the amounts described in the two preceding sentencesentences, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made on or prior to the first (1st) anniversary of the date of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) of the principal balance of this Note. The term “Yield Maintenance Premium” shall mean an amount equal to the greater of (A) two percent (2.0%) of the principal amount being prepaid, and (B) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of this Note and on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) and multiplied by (iii) the principal sum outstanding under this Note after application of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment set forth in the notice of prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx Xxxxx shall deliver to Borrower Maker a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender Payee shall have in good faith applied the formula described above, Borrower Maker shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender Payee on any day during the fifteen (15) day period preceding the date of such prepayment. Lender Payee shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment fee.
Appears in 1 contract
Prepayment; Defeasance. (a) This Note may not be prepaid, in whole or in part (except as otherwise specifically provided herein), at any time prior to the Payment Date occurring three (3) Payment Dates immediately prior to the Maturity Date (the “Lockout Expiration Date”). In the event that Xxxxxxxx Bxxxxxxx wishes to have the Property (as hereinafter defined) released from the lien of the Security Instrument prior to the Lockout Expiration Date, Borrower’s sole option shall be a Defeasance (as hereinafter defined) upon satisfaction of the terms and conditions set forth in Section 1.5(d) hereof. This Note may be prepaid in whole but not in part without premium or penalty on any Payment Date occurring on or after the Lockout Expiration Date provided (i) written notice of such prepayment is received by Lender not more than ninety (90) days and not less than thirty (30) days prior to the date of such prepayment, and (ii) such prepayment is accompanied by all interest accrued hereunder through and including the date of such prepayment and all other sums due hereunder or under the other Loan Documents. If, upon any such permitted prepayment on any Payment Date occurring on or after the Lockout Expiration Date, the aforesaid prior written notice has not been timely received by Lender, there shall be due a prepayment fee equal to the lesser of (i) thirty (30) days’ interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid and (ii) interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid that would have been payable for the period from, and including, the date of prepayment through the Maturity Date, as though such prepayment had not occurred.
(b) If, prior to the Lockout Expiration Date, the indebtedness evidenced by this Note shall have been declared due and payable by Lender pursuant to Article II hereof or the provisions of any other Loan Document due to a default by XxxxxxxxBxxxxxxx, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. In addition to the amounts described in the preceding sentence, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made on or prior to the first (1st) anniversary of the date of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) of the principal balance of this Note. The term “Yield Maintenance Premium” shall mean an amount equal to the greater of (A) two percent (2.0%) of the principal amount being prepaid, and (B) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of this Note and on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) and multiplied by (iii) the principal sum outstanding under this Note after application of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx shall deliver to Borrower a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender shall have in good faith applied the formula described above, Borrower shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender on any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment fee.Payment
Appears in 1 contract
Prepayment; Defeasance. (a) This Note may Subject to the provisions of Section 4(h) below, Borrower shall not have the right or privilege to prepay all or any portion of the unpaid principal balance of this Note, except in connection with the application of Net Proceeds by Lender pursuant to Section 1.09 of the Security Instrument (which application shall not be prepaid, in whole subject to any Prepayment Charge (defined below)).
(b) On or in part after the earlier of (except as otherwise specifically provided herein), at any time prior to the Payment Date occurring i) three (3) years from the due date of the first Monthly Payment Dates immediately prior to or (ii) the Maturity Date date which is two (2) years and one (1) day after the “startup day” of any “real estate mortgage investment conduit” or “REMIC” (as such terms are defined in Sections 860G(a)(9) and 860D, respectively, of the United States Internal Revenue Code, as amended, and any related United States Treasury Department regulations) which may acquire the Loan, as the case may be (the “Lockout Expiration Date”), and provided that no Event of Default exists, Borrower may obtain a release (the “Release”) of the Property from the lien of the Security Instrument and the other Loan Documents provided that the following conditions have been satisfied (a “Defeasance”):
(1) Borrower shall have provided Lender with not less than thirty (30) days and not more than sixty (60) days prior written notice (the “Defeasance Notice”) specifying the Monthly Payment date (the “Release Date”) on which the Defeasance Deposit (defined below) is to be paid or the Government Securities (defined below) are to be delivered, in each case in the manner hereinafter provided;
(2) Borrower shall have paid to Lender all interest accrued and unpaid on the principal balance of this Note to and including the Release Date;
(3) Borrower shall have paid to Lender all other sums due and payable under this Note, the Security Instrument and the other Loan Documents to and including the Release Date, including, without limitation, any Monthly Payment which may be due and payable on the Release Date;
(4) Borrower shall have paid to Xxxxxx’s Representative a $5,000.00 non-refundable processing fee (the “Defeasance Processing Fee”), which must be paid at the same time the Defeasance Notice is provided to Lender;
(5) Borrower shall have either paid to Xxxxxx’s Representative the Defeasance Deposit or delivered to Xxxxxx’s Representative the Government Securities, whichever Lender requires at Lender’s option;
(6) All payments by Borrower to Xxxxxx’s Representative under this Section 4 shall have been made in immediately available funds, except for the Defeasance Processing Fee, which may be paid by check or draft;
(7) The proposed Defeasance and Release shall not cause the Loan to lose its status as a “qualified mortgage” within the meaning of Sections 860D and 860G(a)(3) of the United States Internal Revenue Code, as amended, and any related United States Treasury Department regulations, including without limitation United States Treasury Department Regulation 1.860(G)-2(a);
(8) The Successor Borrower (defined below) shall have been established and shall have been approved by Xxxxxx’s Representative;
(9) Borrower shall have delivered to Lender the following items at least fifteen (15) days prior to the Release Date:
(A) the Defeasance Security Agreement (defined below);
(B) a release of the Property from the lien of the Security Instrument (for execution by Xxxxxx) in form and substance appropriate for the jurisdiction in which the Property is located and satisfactory to Lender’s Representative;
(C) a certificate of Borrower, in form and substance satisfactory to Xxxxxx’s Representative, certifying that all of the conditions and requirements set forth in this Section 4 have been satisfied;
(D) a certificate, in form and substance satisfactory to Lender’s Representative, from an independent certified public accountant approved by Xxxxxx’s Representative, certifying that the Government Securities will generate monthly amounts and cash flow that are sufficient, without reinvestment, to timely pay all Scheduled Defeasance Payments (defined below);
(E) the Defeasance Opinion (defined below);
(F) written confirmation from the applicable Rating Agency(ies) to the effect that such Release and substitution of Defeasance Collateral (defined below) will not result in a downgrade, withdrawal or qualification of any rating in effect immediately prior to Defeasance for any Securities;
(G) if Xxxxxx’s Representative requires Borrower to establish the Successor Borrower pursuant to Section 4(f)(vii) below, evidence satisfactory to Xxxxxx’s Representative of the establishment of Successor Borrower, including without limitation, the Successor Xxxxxxxx’s original organizational documents;
(H) the Transfer and Assignment Agreement (defined below); and
(I) such other certificates, documents or instruments as Xxxxxx’s Representative may reasonably request.
(c) Borrower shall have paid to Xxxxxx’s Representative all costs and expenses (including, without limitation, Rating Agency(ies)’, consultants’, accountants’ and attorneys’ fees, costs and expenses) incurred by Xxxxxx’s Representative in connection with the matters referred to in this Section 4, including, without limitation, all costs and expenses incurred in connection with the review of the proposed Defeasance Collateral, the preparation of the Defeasance Security Agreement (and any related documentation) and the establishment and maintenance of the Successor Borrower, and any administrative expenses and applicable federal income taxes associated with or incurred by the Successor Borrower.
(d) The Defeasance Deposit (if required by Lender pursuant to Section 4(b)(5) above) shall be used by Xxxxxx’s Representative to purchase the Government Securities. In connection therewith, Borrower hereby irrevocably appoints Xxxxxx’s Representative as Xxxxxxxx’s agent and attorney-in-fact, which appointment is coupled with an interest, for the event purpose of using the Defeasance Deposit to purchase or cause to be purchased the Government Securities. Borrower, pursuant to the Defeasance Security Agreement or other appropriate documents, shall authorize and direct that the payments received from the Government Securities be made directly to Lender’s Representative and applied to satisfy the obligations of the Borrower under this Note, including without limitation, this Section 4. Xxxxxxxx wishes specifically agrees that all power granted to have Lender under this Section 4(d) may be assigned by Xxxxxx to its successors or assigns as holder of this Note.
(e) Upon satisfaction of all the terms and conditions of Sections 4(b) and (c) above, the Property (as hereinafter defined) shall be released from the lien of the Security Instrument prior to and the Lockout Expiration Dateother Loan Documents and the Defeasance Collateral shall constitute the sole collateral which shall secure this Note. Lender will, Borrowerat Xxxxxxxx’s sole option shall be a Defeasance (as hereinafter defined) upon satisfaction expense, execute and deliver any agreements reasonably requested by Borrower to release the Property from the lien of the terms Security Instrument and conditions set forth in Section 1.5(d) hereof. This Note may be prepaid in whole but not in part without premium or penalty on any Payment Date occurring on or after the Lockout Expiration Date provided (i) written notice of such prepayment is received by Lender not more than ninety (90) days and not less than thirty (30) days prior to the date of such prepayment, and (ii) such prepayment is accompanied by all interest accrued hereunder through and including the date of such prepayment and all other sums due hereunder or under the other Loan Documents. IfAfter payment of the Defeasance Deposit or delivery of the Government Securities pursuant to Section 4(b)(5) above, upon notwithstanding any such permitted prepayment on any Payment Date occurring on or after the Lockout Expiration Date, the aforesaid prior written notice has not been timely received by Lender, there shall be due a prepayment fee equal statement to the lesser of (i) thirty (30) days’ interest computed at the Note Rate on the outstanding principal balance of contrary contained in this Note so prepaid and (ii) interest computed at or in any of the Note Rate on the outstanding principal balance of other Loan Documents, this Note so cannot be prepaid that would have been payable for in whole or in part or be the period from, and including, the date subject of prepayment through the Maturity Date, as though such prepayment had not occurredany further Defeasance.
(bf) If, prior to For the Lockout Expiration Datepurposes of this Section 4, the indebtedness evidenced by this Note following terms shall have been declared due and payable by Lender pursuant to Article II hereof or the provisions of any other Loan Document due to a default by Xxxxxxxx, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. In addition to the amounts described in the preceding sentence, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made on or prior to the first (1st) anniversary of the date of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) of the principal balance of this Note. The term “Yield Maintenance Premium” shall mean an amount equal to the greater of (A) two percent (2.0%) of the principal amount being prepaid, and (B) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of this Note and on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) and multiplied by (iii) the principal sum outstanding under this Note after application of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx shall deliver to Borrower a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender shall have in good faith applied the formula described above, Borrower shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender on any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment fee.following meanings:
Appears in 1 contract
Prepayment; Defeasance. (a) This Note may not be prepaid, in whole or in part (except as otherwise specifically provided herein), at any time prior to the Payment Date occurring three (3) Payment Dates immediately prior to the Maturity Date (the “Lockout Expiration Optional Prepayment Date”). In the event that Xxxxxxxx Maker wishes to have the Security Property (as hereinafter defined) released from the lien of the Security Instrument prior to the Lockout Expiration Optional Prepayment Date, Borrower’s Maker's sole option shall be a Defeasance (as hereinafter defined) upon satisfaction of the terms and conditions set forth in Section 1.5(d1.7(d) hereof. This Note may be prepaid in whole but not in part without premium or penalty on any of the three (3) Payment Date Dates occurring on or after immediately prior to the Lockout Expiration Maturity Date provided (i) written notice of such prepayment is received by Lender Payee not more than ninety (90) days and not less than thirty (30) days prior to the date of such prepayment, and (ii) such prepayment is accompanied by all interest accrued hereunder through and including the date of such prepayment and all other sums due hereunder or under the other Loan Documents. If, upon any such permitted prepayment on any of the three (3) Payment Date Dates occurring on or after immediately prior to the Lockout Expiration Maturity Date, the aforesaid prior written notice has not been timely received by LenderPayee, there shall be due a prepayment fee equal to, an amount equal to the lesser of (i) thirty (30) days’ ' interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid and (ii) interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid that would have been payable for the period from, and including, the date of prepayment through the Maturity Date, Date of this Note as though such prepayment had not occurred.
(b) If, prior to the Lockout fourth (4th) anniversary of the First Payment Date (the "Lock-out Expiration Date"), the indebtedness evidenced by this Note shall have been declared due and payable by Lender Payee pursuant to Article II III hereof or the provisions of any other Loan Document due to a default by XxxxxxxxMaker, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a sum equal to the interest which would have accrued on the principal balance of this Note at the Note Rate from the date of such acceleration to the Lock-out Expiration Date, together with a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. If such acceleration is on or following the Lock-out Expiration Date, the Yield Maintenance Premium shall also then be immediately due and payable as though Maker were prepaying the entire indebtedness on the date of such acceleration. In addition to the amounts described in the two preceding sentencesentences, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made on or prior to the first (1st) anniversary of the date of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) of the principal balance of this Note. The term “"Yield Maintenance Premium” " shall mean an amount equal to the greater of (A) two percent (2.0%) of the principal amount being prepaid, and (B) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of this Note and on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “"Payment Differential” " shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) and multiplied by (iii) the principal sum outstanding under this Note after application of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “"Reinvestment Yield” " shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment set forth in the notice of prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx Xxxxx shall deliver to Borrower Maker a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender Payee shall have in good faith applied the formula described above, Borrower Maker shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender Payee on any day during the fifteen (15) day period preceding the date of such prepayment. Lender Payee shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment fee.
Appears in 1 contract
Samples: Promissory Note (Cole Credit Property Trust II Inc)
Prepayment; Defeasance. (a) This 5.1 Borrower shall not have the right or privilege to prepay all or any portion of the unpaid principal balance of this Note until the Open Prepayment Date. From and after the Open Prepayment Date, provided no Event of Default exists, the principal balance of this Note may not be prepaid, in whole or in part (except as otherwise specifically provided herein), at any time prior to the Payment Date occurring three (3) Payment Dates immediately prior to the Maturity Date (the “Lockout Expiration Date”). In the event that Xxxxxxxx wishes to have the Property (as hereinafter defined) released from the lien of the Security Instrument prior to the Lockout Expiration Date, Borrower’s sole option shall be a Defeasance (as hereinafter defined) upon satisfaction of the terms and conditions set forth in Section 1.5(d) hereof. This Note may be prepaid in whole but not in part without premium or penalty part, on any Monthly Payment Date occurring on or after the Lockout Expiration Date provided upon: (i) written notice of such prepayment is received by Lender not more than ninety (90) 60 days and not less than thirty (30) 30 days prior written notice to Lender specifying the date of such prepayment, and on which prepayment is to be made (the “Prepayment Date”); (ii) such prepayment is accompanied by payment of all accrued and unpaid interest accrued hereunder through and including the date of such prepayment and all other sums due hereunder or under the other Loan Documents. If, upon any such permitted prepayment on any Payment Date occurring on or after the Lockout Expiration Date, the aforesaid prior written notice has not been timely received by Lender, there shall be due a prepayment fee equal to the lesser of (i) thirty (30) days’ interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid to and including the Prepayment Date; and (iiiii) interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid that would have been payable for the period from, and including, the date of prepayment through the Maturity Date, as though such prepayment had not occurred.
(b) If, prior to the Lockout Expiration Date, the indebtedness evidenced by this Note shall have been declared due and payable by Lender pursuant to Article II hereof or the provisions of any other Loan Document due to a default by Xxxxxxxx, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. In addition to the amounts described in the preceding sentence, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made on or prior to the first (1st) anniversary of the date of all other sums then due under this Note, there the Security Instrument and the other Loan Documents. Lender shall also then not be immediately due and payable an additional obligated to accept any prepayment fee of three percent (3%) of the principal balance of this Note unless it is accompanied by all sums due in connection therewith.
5.2 (1) At any time from and after the Lockout Period Expiration Date and provided no Event of Default exists at the time, Xxxxxxxx may obtain the release of the Property from the lien of the Security Instrument upon the satisfaction of the following conditions precedent:
(1) Borrower shall have provided Lender with not less than 30 days and not more than 60 days prior written notice specifying the date (the “Release Date”) on which the Defeasance Deposit is to be made;
(2) Borrower shall have paid to Lender all interest accrued and unpaid on the principal balance of this Note to and including the Release Date;
(3) Borrower shall have paid to Lender all other sums due and payable under this Note. The term “Yield Maintenance Premium” , the Security Instrument and the other Loan Documents through and including the Release Date (including, but not limited to, any Constant Monthly Payment which may be due and payable on the Release Date);
(4) Borrower shall mean an amount equal have paid to Lender the greater of Defeasance Deposit and a $5,000 non-refundable processing fee; and
(5) Borrower shall have delivered to Lender the following:
(A) two percent a security agreement, in form and substance satisfactory to Lender, creating a first priority lien on the Defeasance Deposit and the Government Securities purchased on behalf of Borrower with the Defeasance Deposit in accordance with the provisions of this Section 5.2 (2.0%the “Pledge Agreement”);
(B) a release of the principal amount being prepaidProperty from the lien of the Security Instrument (for execution by Xxxxxx) in a form appropriate for the jurisdiction in which the Property is located;
(C) an officer’s certificate of Borrower certifying that the requirements set forth in this Section 5.2 have been satisfied;
(D) a certificate by Xxxxxxxx’s nationally recognized independent public accountant acceptable to Lender, in form and substance acceptable to Lender, certifying that the cash flow from the Government Securities will be sufficient to timely meet all Scheduled Defeasance Payments;
(E) an opinion of counsel in form and substance, and rendered by counsel satisfactory, to Lender at Xxxxxxxx’s expense stating, among other things, that Xxxxxx will have a perfected first priority security interest in the Defeasance Deposit and the Government Securities to be purchased on behalf of Borrower and pledged to Lender and as to the enforceability of the Pledge Agreement and other related documents to be delivered in connection therewith;
(F) if required by the Rating Agencies (as defined in the Security Instrument) and/or pooling and servicing agreement relating to the securitization of the Loan, evidence in writing from the applicable Rating Agencies to the effect that such release will not result in a qualification, downgrade or withdrawal of any rating in effect immediately prior to such defeasance with respect to any security backed by the Loan;
(G) if the Loan has been sold in a Secondary Market Transaction (as defined in the Security Instrument), an opinion of counsel acceptable to Lender in form satisfactory to Lender stating, among other things, that the substitution of collateral will not cause the holder of the Loan to fail to maintain its status as a real estate mortgage investment conduit; and
(H) such other certificates, documents or instruments as Lender may reasonably request. The Defeasance Deposit shall be used to purchase Government Securities which provide payments which are (A) payable on or prior to, but as close as possible to, all successive Monthly Payment Dates after the Release Date and the Maturity Date and (B) in amounts necessary to meet the present value scheduled payments of a series of payments each equal to the Payment Differential (as hereinafter defined) principal and payable on each Payment Date over the remaining original term of this Note and on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) and multiplied by (iii) the principal sum outstanding under this Note after application of the constant monthly payment interest due under this Note on such dates (the date of such prepayment“Scheduled Defeasance Payments”). Borrower, provided pursuant to the Pledge Agreement or other appropriate documents, shall authorize and direct that the Payment Differential shall in no event payments received from the Government Securities be less than zero. The term “Reinvestment Yield” shall mean an amount equal made directly to Lender and applied to satisfy the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life obligations of the indebtedness evidenced by Borrower under this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx shall deliver to Borrower a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender shall have in good faith applied the formula described above, Borrower shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender on any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment fee.
Appears in 1 contract
Prepayment; Defeasance. (a) This The principal balance of this Note may not be prepaid, prepaid in whole or in part (except as otherwise specifically expressly permitted pursuant hereto.
(b) Subject to compliance with and satisfaction of the terms and conditions of this Article 6 and provided herein)that no Event of Default exists, at any time prior Borrower may elect to the Payment Date occurring three (3) Payment Dates immediately prior to the Maturity Date obtain a release (the “Lockout Expiration Date”). In the event that Xxxxxxxx wishes to have "Release") of the Property (as hereinafter defined) released from the lien of the Security Instrument prior to the Lockout Expiration Date, Borrower’s sole option shall be a Defeasance (as hereinafter defined) upon satisfaction of the terms and conditions set forth in Section 1.5(d) hereof. This Note may be prepaid in whole but not in part without premium or penalty on any Payment Date occurring on or after the Lockout Period Expiration Date provided (idefined below) written notice by delivering to Lender, as security for the payment of such prepayment is received by Lender not more than ninety (90) days and not less than thirty (30) days prior to the date of such prepayment, and (ii) such prepayment is accompanied by all interest accrued hereunder and principal due and to become due pursuant to this Note through and including the date of such prepayment and all other sums due hereunder or under the other Loan Documents. If, upon any such permitted prepayment on any Payment Date occurring on or after the Lockout Expiration Maturity Date, plus the aforesaid prior written notice has not been timely received by Lender, there shall be due a prepayment fee equal to the lesser of (i) thirty (30) days’ interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid scheduled to be outstanding on the Maturity Date, Defeasance Collateral (defined below) sufficient to generate Scheduled Defeasance Payments (defined below) (the Release and the delivery of the Defeasance Collateral, a "Defeasance")
(c) As a condition precedent to a Defeasance, and prior to any Release, Borrower shall have complied with all of the following.
(i) Borrower shall provide not less than sixty (60) days prior written notice to Lender specifying a Payment Date upon which it intends to effect a Defeasance hereunder (the "Defeasance Date")
(ii) All accrued and unpaid interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid that would have been payable for to and including the period from, and including, the date of prepayment through the Maturity Date, as though such prepayment had not occurred.
(b) If, prior to the Lockout Expiration Defeasance Date, the indebtedness evidenced by scheduled amortization payment due on such Defeasance Date, and all other sums then due under this Note Note, the Security Instrument and the Other Security Documents, shall have been declared due and payable by Lender pursuant to Article II hereof or the provisions of any other Loan Document due to a default by Xxxxxxxx, then, be paid in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. In addition to the amounts described in the preceding sentence, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made full on or prior to the Defeasance Date
(iii) Borrower shall execute and deliver to Lender any and all certificates, opinions, documents or instruments reasonably required by Lender in connection with the Defeasance and Release, including, without limitation, a pledge and security agreement reasonably satisfactory to Lender creating a first priority lien on the Defeasance Collateral (1sta "Defeasance Security Agreement"). This Note shall thereafter be secured by the Defeasance Collateral delivered in connection with the Defeasance. After Defeasance, this Note cannot be prepaid in whole or in part or be the subject of any further Defeasance.
(iv) anniversary Borrower shall have delivered to Lender an opinion of Borrower's counsel that would be satisfactory to a prudent lender stxxxxx (X) that the Defeasance Collateral and the proceeds thereof have been duly and validly assigned and delivered to Lender and that Lender has a valid, perfected, first priority lien and security interest in the Defeasance Collateral delivered by Borrower and the proceeds thereof, (B) that if the holder of this Note shall at the time of the date Release be a REMIC (defined below), (1) the Defeasance Collateral has been validity assigned to the REMIC Trust which holds this Note (the "REMIC Trust"), (2) the Defeasance has been effected in accordance with the requirements of this Note, there shall also then Treasury Regulation 1 860(g)-2(a)(8) (as such regulation may be immediately due amended or substituted from time to time) and payable will not be treated as an additional prepayment fee exchange pursuant to Section 1001 of three percent the IRS Code and (3%) the tax qualification and status of the principal balance REMIC Trust as a REMIC will not be adversely affected or impaired as a result of this Notethe Defeasance and (C) that the delivery of the Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the U S Bankruptcy Code or applicable state law. The term “Yield Maintenance Premium” "REMIC" shall mean an amount equal to a "real estate mortgage investment conduit" within the greater meaning of (A) two percent (2.0%) Section 860D of the principal amount being prepaid, and (B) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of this Note and on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity DateIRS Code. The term “Payment Differential” "IRS Code" shall mean an amount equal to (i) the Note Rate less United States Internal Revenue Code of 1986, as amended, and the Reinvestment Yieldrelated Treasury Department regulations, divided by (ii) twelve (12) and multiplied by (iii) the principal sum outstanding under this Note after application of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx shall deliver to Borrower a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender shall have in good faith applied the formula described above, Borrower shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender on any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment feeincluding temporary regulations.
Appears in 1 contract
Prepayment; Defeasance. (a) This Note may not be prepaid, in whole or in part (except as otherwise specifically provided herein), at any time prior to the Payment Date occurring three (3) Payment Dates immediately prior to the Maturity Date (the “Lockout Expiration Date”). In the event that Xxxxxxxx wishes to have the Property (as hereinafter defined) released from the lien of the Security Instrument prior to the Lockout Expiration Date, Borrower’s sole option shall be a Defeasance (as hereinafter defined) upon satisfaction of the terms and conditions set forth in Section 1.5(d) hereof. This Note may be prepaid in whole but not in part without premium or penalty on any Payment Date occurring on or after the Lockout Expiration Date provided (i) written notice of such prepayment is received by Lender not more than ninety (90) days and not less than thirty (30) days prior to the date of such prepayment, and (ii) such prepayment is accompanied by all interest accrued hereunder through and including the date of such prepayment and all other sums due hereunder or under the other Loan Documents. If, upon any such permitted prepayment on any Payment Date occurring on or after the Lockout Expiration Date, the aforesaid prior written notice has not been timely received by Lender, there shall be due a prepayment fee equal to the lesser of (i) thirty (30) days’ interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid and (ii) interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid that would have been payable for the period from, and including, the date of prepayment through the Maturity Date, as though such prepayment had not occurred.
(b) If, prior to the Lockout Expiration Date, the indebtedness evidenced by this Note shall have been declared due and payable by Lender pursuant to Article II hereof or the provisions of any other Loan Document due to a default by Xxxxxxxx, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. In addition to the amounts described in the preceding sentence, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made on or prior to the first (1st) anniversary of the date of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) of the principal balance of this Note. The term “Yield Maintenance Premium” shall mean an amount equal to the greater of (A) two percent (2.0%) of the principal amount being prepaid, and (B) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of this Note and on the Maturity Lockout Expiration Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) and multiplied by (iii) the principal sum outstanding under this Note after application of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx shall deliver to Borrower a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender shall have in good faith applied the formula described above, Borrower shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender on any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment fee.months
Appears in 1 contract
Samples: Promissory Note (Dividend Capital Total Realty Trust Inc.)
Prepayment; Defeasance. (a) This Note The Loan may not be prepaid, in whole or in part (except as otherwise specifically provided herein), at any time prepaid until 24 months prior to the maturity date (such time period being the “Permitted Prepayment Period”). Any prepayment during the Permitted Prepayment Period shall be accompanied by interest through the end of the applicable interest accrual period. In addition, after the earlier of two years after the date on which the entire Loan (including any subordinated interest therein) has been securitized or three years after the closing of the Loan (such two- or three-year period, as the case may be, the “Defeasance Lockout Period”), Borrower may defease the Loan by delivering non-callable U.S. securities backed by the full faith and credit of the U.S. government which provide for payments on or before (but as close as possible to) the remaining Payment Dates in amounts equal to scheduled debt service on the Loan up to the first Payment Date occurring three (3) Payment Dates immediately in the Permitted Prepayment Period, including the balloon payment on the earliest permitted prepayment date. Borrower will be responsible for all actual and documented reasonable costs and expenses incurred in connection with such defeasance and will designate the defeasance borrower, subject to customary requirements to be set forth in the loan documents. If all or any portion of Loan principal is repaid prior to the Maturity Permitted Prepayment Period following an acceleration of the Loan, a yield maintenance premium (based on Treasuries flat) in respect of payments due through the first Payment Date (in the “Lockout Expiration Date”)Permitted Prepayment Period, but in no event shall such premium be less than 2% of the prepaid principal balance shall be due and payable. In the event that Xxxxxxxx wishes to have the Property (as hereinafter defined) released RELEASE OPTION: Borrower may release one or more properties from the lien Loan after the expiration of the Security Instrument prior Defeasance Lockout Period, subject to the Lockout Expiration Date, Borrower’s sole option shall be a Defeasance (as hereinafter defined) upon satisfaction of the terms and conditions set forth in Section 1.5(dOption A or Option B below, Lender agreeing that Option B shall apply, unless the rating agencies determine that Option B will have a “credit negative” effect in the securitization of the Loan, in which case Option A shall apply: OPTION A: (a) hereof. This Note may an arm’s length sale to an unaffiliated third party, (b) payment of a release price equal to the greater of (x) 125% of the applicable allocated loan amount (specified at closing) for such property (except that for 3800 Buffalo Speedway, One Greenway Plaza and Two Greenway Plaza, such percentage shall be prepaid in whole but not in part without premium 105%) and (y) 80% of net sales proceed for such property and (c) aggregate portfolio DSCR after giving effect to such release is equal to or penalty on any Payment Date occurring on or after greater than the Lockout Expiration Date provided greater of (ix) written notice aggregate portfolio DSCR as of such prepayment is received by Lender not more than ninety the closing date and (90y) days and not less than thirty (30) days aggregate portfolio DSCR immediately prior to such release; provided, however, notwithstanding the date foregoing, Borrower shall not be permitted to release the Central Plant, The Hub “Food Hall”, any Parking Garages that would be necessary for the remaining subject collateral, or Greenway Five; or OPTION B: (a) an arm’s length sale to an unaffiliated third party, (b) defeasance of Loan principal equal to the greater of (x) 115% of the applicable allocated loan amount (specified at closing) for such prepaymentproperty (except that for 3800 Buffalo Speedway, One Greenway Plaza and Two Greenway Plaza, such percentage shall be 105%), and (iiy) 80% of net sales proceed for such prepayment property and (c) aggregate portfolio DSCR after giving effect to such release is accompanied by all interest accrued hereunder through and including the date of such prepayment and all other sums due hereunder or under the other Loan Documents. If, upon any such permitted prepayment on any Payment Date occurring on or after the Lockout Expiration Date, the aforesaid prior written notice has not been timely received by Lender, there shall be due a prepayment fee equal to or greater than the greater of (x) aggregate portfolio DSCR as of the closing date and (y) the lesser of (i) thirty (30) days’ interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid aggregate portfolio DSCR immediately prior to such release and (ii) interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid that would have been payable for the period from, and including, the date of prepayment through the Maturity Date, as though such prepayment had not occurred.
(b) If, prior to the Lockout Expiration Date, the indebtedness evidenced by this Note shall have been declared due and payable by Lender pursuant to Article II hereof or the provisions of any other Loan Document due to a default by Xxxxxxxx, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. In addition to the amounts described in the preceding sentence, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made on or prior to the first (1st) anniversary 110% of the date of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) of the principal balance of this Note. The term “Yield Maintenance Premium” shall mean an amount equal to the greater of (A) two percent (2.0%) of the principal amount being prepaid, and (B) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of this Note and on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining aggregate portfolio DSCR as of the date of such prepayment to each such Payment Date and closing date; provided, however, notwithstanding the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) and multiplied by (iii) the principal sum outstanding under this Note after application of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx shall deliver to Borrower a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender shall have in good faith applied the formula described aboveforegoing, Borrower shall not have be permitted to release the right Central Plant, The Hub “Food Hall”, any Parking Garages that would be necessary for the remaining subject collateral, or Greenway Five. All such releases shall be subject to challenge the calculation or the method satisfaction of calculation set forth in any such statement Lender’s standard release requirements to be specified in the absence loan documents, including, but not limited to, the delivery of manifest erroran endorsement to the title policy and updated survey, which calculation may be made by Lender the creation of separate tax parcels, continued zoning compliance, the amendment of any applicable REA, payment of the lender’s reasonably incurred out of pocket costs and expenses (including reasonable attorneys’ fees and costs), and, if the Loan has been securitized, the delivery of an acceptable REMIC opinion and satisfaction of the applicable REMIC LTV test, but no such standard release requirement not specified in this paragraph shall impose any material burden or expense on Borrower or any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment feeits affiliates.
Appears in 1 contract
Samples: Omnibus Contribution and Partial Interest Assignment Agreement (Parkway, Inc.)
Prepayment; Defeasance. (a) This Note may Subject to the provisions of Section 4(h) below, Borrower shall not have the right or privilege to prepay all or any portion of the unpaid principal balance of this Note, except in connection with the application of Net Proceeds by Lender pursuant to Section 1.09 of the Security Instrument (which application shall not be prepaid, in whole subject to any Prepayment Charge (defined below)).
(b) On or in part after the later of (except as otherwise specifically provided herein), at any time prior to the Payment Date occurring i) three (3) years from the due date of the first Monthly Payment Dates or (ii) the date which is two (2) years and one (1) day after the "startup dxx" of any "real estate mortgage investment conduit" or "REMIC" (as such terms are defined in Sections 860G(a)(9) and 8600, respectively, of the United States Internal Revenue Code, as amended, and any related United States Treasury Department regulations) which may acquire the Loan, as the case may be (the "Lockout Expiration Date"), and provided that no Event of Default exists, Borrower may obtain a release (the "Release") of the Property from the lien of the Security Instrument and the other Loan Documents provided that the following conditions have been satisfied (a "Defeasance"):
(1) Borrower shall have provided Lender with not less than thirty (30) days and not more than Sixty (60) days prior written notice (the "Defeasance Notice") specifying the Monthly Payment date (the "Release Date") on which the Defeasance DepOSIT (defined below) is to be paid or the Government Securities (defined below) are to be delivered, in each case in the manner hereinafter provided;
(2) Borrower shall have paid to Lender all interest accrued and unpaid on the principal balance of this Note to and including the Release Date;
(3) Borrower shall have paid to Lender all other sums due and payable under this Note, the Security Instrument and the other Loan Documents to and including the Release Date, including, without limitation, any Monthly Payment which may be due and payable on the Release Date;
(4) Borrower shall have paid to Lxxxxx's Representative a $5,000.00 non-refundable processing fee (the "Defeasance Processing Fee"), which must be paid at the same time the Defeasance Notice is provided to Lender;
(5) Borrower shall have either paid to Lxxxxx's Representative the Defeasance Deposit or delivered to Lxxxxx's Representative the Government Securities, whichever Lender requires at Lender's option;
(6) All payments by Borrower to Lxxxxx's Representative under this Section 4 shall have been made in immediately available funds, except for the Defeasance Processing Fee, which may be paid by check or draft;
(7) The proposed Defeasance and Release shall not cause the Loan to lose its status as a "qualified mortgage" wtthin the meaning of Sections 860D and 860G(a)(3) of the United States Internal Revenue Code, as amended, and any related United States Treasury Department regulations, including without limitation United States Treasury Department Regulation 1.860(G)-2(a);
(8) The Successor Borrower (defined below) shall have been established and shall have been approved by Lxxxxx's Representative;
(9) Borrower shall have delivered to Lender the following items at least fifteen (15) days prior to tihe Release Date:
(A) the Defeasance Security Agreement (defined below);
(B) a release of the Property from the lien of the Security Instrument (for execution by Lxxxxx) in form and substance appropriate for the jurisdiction in which the Property is located and satisfactory to Lxxxxx's Representative;
(C) a certificate of Borrower, in form and substance satisfactory to Lxxxxx's Representative, certifying that all of the conditions and requirements set forth in this Section 4 have been satisfied;
(D) a certificate, in form and substance satisfactory to Lender's Representative, from an independent certified public accountant approved by Lxxxxx's Representative, certifying tihat tihe Government Securities will generate monthly amounts and cash flow that are sufficient, without reinvestment, to timely pay all Scheduled Defeasance Payments (defined below);
(E) the Defeasance Opinion (defined below);
(F) written confirmation from the applicable Rating Agency(ies) to the effect that such Release and substitution of Defeasance Collateral (defined below) will not result in a downgrade, withdrawal or qualification of any rating in effect immediately prior to Defeasance for any Securities;
(G) if Lxxxxx's Representative requires Borrower to establish the Maturity Date Successor Borrower pursuant to Section 4(f)(vii) below, evidence satisfactory to Lxxxxx'S Representative of the establishment of Successor Borrower, including without limitation, the Successor Bxxxxxxx's original organizational documents;
(H) the “Lockout Expiration Date”Transfer and Assignment Agreement (defined below); and
(I) such other certificates, documents or instruments as Lxxxxx's Representative may reasonably request.
(c) Borrower shall have paid to Lxxxxx's Representative all costs and expenses (including without limitation Rating Agency(ies)', consultants', accountants' and attorneys' fees, costs and expenses) incurred by Lxxxxx's Representative in connection with the matters referroo to in this Section 4, including, without limitation, all costs and expenses incurred in connection with the review of the proposed Defeasance Collateral, the preparation of the Defeasance Security Agreement (and any related documentation) and the establishment and maintenance of the Successor Borrower, and any administrative expenses and applicable federal income taxes associated with or incurred by the Successor Borrower.
(d) The Defeasance Deposit (if required by Lender pursuant to Section 4(b)(5) above) shall be used by Lxxxxx's Representative to purchase the Government Securities. In connection therewith, Bxxxxxxx hereby irrevocably appoints Lxxxxx's Representative as Bxxxxxxx's agent and attorney-in-fact, which appointment is coupled with an interest, for the event purpose of using the Defeasance Deposit to purchase or cause to be purchased the Government Securities. Borrower, pursuant to the Defeasance Security Agreement or other appropriate documents, shall authorize and direct that Xxxxxxxx wishes the payments received from the Government Securities be made directly to have Lxxxxx's Representative and applied to satisfy the obligations of the Borrower under this Note, including without limitation, this Section 4. Bxxxxxxx specifically agrees that all power granted to Lender under this Section 4(d) may be assigned by Lxxxxx to its successors or assigns as holder of this Note.
(e) Upon satisfaction of all the terms and conditions of Sections 4(b) and (c) above, the Property (as hereinafter defined) shall be released from the lien of the Security Instrument prior and the other Loan Documents and the Defeasance Collateral shall constitute collateral which shall secure this Note. Lender will, at Bxxxxxxx's sole expense, execute and deliver any agreements reasonably requested by Borrower to release the Lockout Expiration Date, Borrower’s sole option shall be a Defeasance (as hereinafter defined) upon satisfaction Property from the lien of the terms Security Instrument and conditions set forth in Section 1.5(d) hereof. This Note may be prepaid in whole but not in part without premium or penalty on any Payment Date occurring on or after the Lockout Expiration Date provided (i) written notice of such prepayment is received by Lender not more than ninety (90) days and not less than thirty (30) days prior to the date of such prepayment, and (ii) such prepayment is accompanied by all interest accrued hereunder through and including the date of such prepayment and all other sums due hereunder or under the other Loan Documents. IfAfter payment of the Defeasance Deposit or delivery of the Government Securities pursuant to Section 4(b){5) above, upon notwithstanding any such permitted prepayment on any Payment Date occurring on or after the Lockout Expiration Date, the aforesaid prior written notice has not been timely received by Lender, there shall be due a prepayment fee equal statement to the lesser of (i) thirty (30) days’ interest computed at the Note Rate on the outstanding principal balance of contrary contained in this Note so prepaid and (ii) interest computed at or in any of the Note Rate on the outstanding principal balance of other Loan Documents, this Note so cannot be prepaid that would have been payable for in whole or in part or be the period from, and including, the date subject of prepayment through the Maturity Date, as though such prepayment had not occurredany further Defeasance.
(bf) If, prior to For the Lockout Expiration Datepurposes of this Section 4, the indebtedness evidenced by this Note following terms shall have been declared due and payable by Lender pursuant to Article II hereof or the provisions of any other Loan Document due to a default by Xxxxxxxx, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. In addition to the amounts described in the preceding sentence, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made on or prior to the first (1st) anniversary of the date of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) of the principal balance of this Note. The term “Yield Maintenance Premium” shall mean an amount equal to the greater of (A) two percent (2.0%) of the principal amount being prepaid, and (B) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of this Note and on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) and multiplied by (iii) the principal sum outstanding under this Note after application of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Xxxxxx shall deliver to Borrower a statement setting forth the amount and determination of the prepayment fee, and, provided that Lender shall have in good faith applied the formula described above, Borrower shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Lender on any day during the fifteen (15) day period preceding the date of such prepayment. Lender shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment fee.following meanings:
Appears in 1 contract
Samples: Loan Agreement (Netreit, Inc.)
