Property Releases. After the Lockout Period and provided no Event of Default exists, Borrower may obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) of the Mortgage thereon (and the related Loan Documents) and the release of the Borrower’s obligations under the Loan Documents with respect to such Individual Property (other than those expressly stated to survive) (each such release or assignment a “Property Release”), upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lender: (a) Borrower shall pay the Release Amount for the applicable Individual Property, and such payment shall be deemed a voluntary prepayment of a portion of the Loan for all purposes hereunder; (b) Borrower shall pay to Lender any applicable Prepayment Premium plus, without duplication, interest on such prepaid amount of the Loan through the end of the Interest Period in which such payment or prepayment occurs; (c) Borrower shall submit to Lender, not less than seven (7) Business Days prior to the Payment Date on which the Property Release shall be made, a release (or assignment) of the lien of the Mortgage (and related Loan Documents) for such Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate in the jurisdiction in which the Individual Property is located and that contains standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Release, together with a certificate from an officer of Borrower certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties subject to the Loan Documents not being released); (d) After giving effect to such Property Release, the Debt Service Coverage Ratio for the Properties then remaining subject to the lien of the Mortgage shall be equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or (ii) the Debt Service Coverage Ratio immediately prior to the Property Release; (e) Concurrently with the payment of the Release Amount, New Mezzanine Borrower, if any, shall make a partial prepayment of the related New Mezzanine Loan, if any, equal to the related release amount (as defined in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents; (f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Release; (g) All reasonable costs and expenses incurred by Lender in connection with such Property Release shall be paid by Borrower. Any assignments made by Lender shall be without recourse, representation or warranty by Lender and shall comply with all applicable law; (h) the Allocated Loan Amount for the applicable Individual Property, when combined with the Allocated Loan Amount attributable to the other Individual Properties that have been released pursuant to this Section 2.05, shall not represent more than (x) 15% of the original principal amount of the Loan in any given twelve (12) consecutive month period, and (y) in the aggregate, 40% of the original principal amount of the Loan over the entire term of the Loan; (i) Borrower shall have provided evidence reasonably acceptable to Lender, that it has terminated the applicable Operating Lease with respect to such Individual Property in accordance with the terms of such Operating Lease including, without limitation, the payment by Borrower to the applicable Tenant of any compensation owing by Borrower to such Tenant under such Operating Lease with respect to the Individual Property being released.
Appears in 2 contracts
Samples: Loan Agreement (Bon Ton Stores Inc), Loan Agreement (Bon Ton Stores Inc)
Property Releases. After the Lockout Period and provided no Event of Default exists, Mortgage Borrower may obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) Lien of the Mortgage thereon (and the related Mortgage Loan Documents) pursuant to Section 2.9 of the Mortgage Loan Agreement, and Borrower shall have the right to obtain the release of the Borrower’s obligations under portion of the Loan Documents with respect Collateral related to such Individual Property being released (other than those expressly stated to survive) (each such release or assignment a “Property Release”), upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lenderconditions:
(a) Borrower No Event of Default shall pay then exist (other than a non-monetary Event of Default that is specific to the Release Amount for Individual Property being released pursuant to this Section 2.9 and which non-monetary Event of Default would be cured as a result of the release of the applicable Individual Property);
(b) The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates, and such payment prepayment shall be deemed a voluntary prepayment of a portion of the Loan for all purposes hereunder;
(bc) Borrower shall pay provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to obtain a release of the Collateral related to the Individual Property (the “Release Date”) (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lender any applicable Prepayment Premium plus, without duplication, provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates (together with all (i) accrued and unpaid interest on such prepaid the principal amount being prepaid, (ii) Breakage Costs, if applicable, (iii) Compensating Interest, if applicable and (iv) the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan through the end Amount of the Interest Period in which such payment or prepayment occursIndividual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(ce) Borrower shall submit to Lender, not less than seven ten (710) Business Days prior to the Payment Date on which the Property Release shall be madeDate, a release (or assignment) of the lien of the Mortgage Lien (and related Loan Documents) for such the portion of the Collateral related to the Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate in the jurisdiction in which the Individual Property is located satisfactory to a prudent institutional lender and that contains shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Releasesuch release, together with a certificate from an officer of Borrower certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender, effect such releases in accordance with the terms of this Agreement, and (iiiii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties the Collateral subject to the Loan Documents not being released). Lender shall deliver such executed release of Lien for the portion of the Collateral related to such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Release Date;
(df) After giving effect to such Property Releaserelease, Lender shall have determined that the Debt Service Coverage Ratio Yield for the Properties then remaining subject to the lien Liens of the Mortgage Mortgages shall be at least equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or 9.50% and (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently with the payment Yield for all of the Release Amountthen remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of the Individual Property, New Mezzanine Borrower, if any, provided that Borrower shall be permitted to make a partial prepayment of the related New Mezzanine Loan, if any, equal to Loan in accordance with the related release amount (as defined terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Releasethis Section;
(g) All reasonable Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and expenses expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred by Lender in connection with such the release of the portion of the Collateral related to the Individual Property Release from the lien of the related Pledge Agreement and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be paid by Borrower. Any assignments made by Lender shall be without recourserequired to pay any consent, representation processing, administrative or warranty by Lender and shall comply similar fee in connection with all applicable lawany prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Mortgage Borrower has complied with all of the Allocated terms and conditions set forth in the Mortgage Loan Amount for Agreement with respect to a release of the applicable Individual Property, when combined with the Allocated Loan Amount attributable security interest corresponding to the other Individual Properties that have been released release requested pursuant to this Section 2.05, shall not represent more than (x) 15% of the original principal amount of the Loan in any given twelve (12) consecutive month period, and (yii) in the aggregate, 40% of the original principal amount of the Loan over the entire term of the Loan;Mortgage Lender has delivered (or is simultaneously delivering) such release to Mortgage Borrower (if applicable); and
(i) Borrower shall have provided delivered evidence reasonably acceptable satisfactory to Lender, Lender that it (i) Junior Mezzanine Borrower has terminated complied with all of the applicable Operating Lease terms and conditions set forth in the Junior Mezzanine Loan Agreement with respect to a release of the security interest (if applicable) corresponding to the release requested pursuant to this Section and (ii) Junior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Junior Mezzanine Borrower (if applicable). Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of the portion of the Collateral related to an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property in accordance to be released together with the terms Allocated Loan Amounts of such Operating Lease including, without limitation, all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the payment by Borrower to original principal balance of the applicable Tenant of any compensation owing by Borrower to such Tenant under such Operating Lease with respect to Loan (the Individual Property being released“Free Prepayment Amount”).
Appears in 1 contract
Samples: Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Property Releases. After the Lockout Period and provided (a) So long as no Event of Default existsis then continuing (other than an Event of Default that would be eliminated after giving effect to the release of the Property proposed to be released pursuant to Section 7.1(n)), any Co-Borrower may obtain the release of an Individual the Property owned by such Co-Borrower from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) Liens of the Mortgage thereon (and the related Loan Documents) Documents and the release of the Borrower’s such Co-Borrower from any and all of its obligations under this Agreement and the other Loan Documents with respect and such Property may be Transferred (whether directly or indirectly by transferring the ownership interests in the Co-Borrower that owns such Property) to such Individual Property an unaffiliated third party in a bona fide arms-length transaction (other than those expressly stated except that, if the release is being effectuated pursuant to survive) (each such release or assignment a “Property Release”the provisions of Section 7.1(n), Borrower may Transfer such Property to an Affiliate of Borrower) upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lenderconditions:
(ai) Borrower shall pay deliver to Administrative Agent and Collateral Agent notice (a “Release Notice”) of its intent to release one or more of the Release Amount Properties, which notice must be given at least 10 Business Days and not more than 60 days prior to the Business Day upon which the release is to be made, shall specify the Property or Properties that Borrower intends to release and shall be executed by each Borrower. Borrower shall promptly reimburse Lender, Administrative Agent and Collateral Agent for any actual out-of-pocket costs and expenses (including the applicable Individual Propertyreasonable fees and expenses of legal counsel) incurred by any of them in connection with a release pursuant to this Section 2.2.
(ii) At the time of such release, and such payment as a condition thereto: (1) Borrower shall be deemed a voluntary prepayment of prepay a portion of the Loan for all purposes hereunder;
(b) Borrower shall Loan, in accordance with Section 2.1, in an amount equal to the applicable Release Price and, in the event that such release occurs at any time during the Spread Maintenance Period, simultaneously pay to Lender any applicable Prepayment Premium plusSpread Maintenance Amount together with the other amounts specified in Section 2.1, without duplication, interest on such prepaid amount of the Loan through the end of the Interest Period in which such payment or prepayment occurs;
(c) Borrower shall submit to Lender, not less than seven (7) Business Days prior to the Payment Date on which the Property Release extent applicable; provided, however, that no Spread Maintenance Amount shall be made, a release (or assignment) payable with respect to the first $50,000,000 of the lien of the Mortgage (and related Loan Documents) for such Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate prepayments in the jurisdiction in which the Individual Property is located and aggregate that contains standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower are made in connection with the Releasereleases pursuant to this Section 2.2, together with a certificate from an officer of Borrower certifying that such documentation Section 2.4, Section 2.5 and Section 7.1(n), (i2) is in compliance with all Legal Requirements, and (ii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties subject to the Loan Documents not being released);
(d) After after giving effect to such Property Releaserelease, the Debt Service Coverage Ratio Borrower shall not be in violation of Section 6.20 and (3) DSCR calculated for the Properties Test Period ending as of the last day of the Fiscal Quarter then remaining subject most recently ended, recalculated to include only income and expense attributable to the lien of Properties remaining after the Mortgage release and to exclude the interest expense and principal payments on the aggregate amount to be prepaid, shall be equal to or exceed greater than DSCR calculated for the greater of (i) the Debt Service Coverage Ratio Test Period ending as of the Closing Date or (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently with the payment last day of the Fiscal Quarter then most recently ended but without such recalculation; provided, however, that if the Release Amount, New Mezzanine Borrower, if any, shall make a partial prepayment of the related New Mezzanine Loan, if any, equal to the related release amount (as defined in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, Price paid by Borrower pursuant to the New Mezzanine Loan Documents;
foregoing clause (f1) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Release;
(g) All reasonable costs and expenses incurred by Lender in connection with such Property Release shall be paid by Borrower. Any assignments made by Lender shall be without recourse, representation equal to or warranty by Lender and shall comply with all applicable law;
(h) greater than 105% of the Allocated Loan Amount for the applicable Individual Property being released, then the DSCR test described in this clause (3) shall not be a condition to the release of such Property.
(iii) In connection with a release of the Stratosphere, when combined either (x) the Stratosphere Excess Land shall have theretofore been released or (y) Borrower shall cause the Stratosphere Excess Land to be released contemporaneously therewith in accordance with the Allocated Loan Amount attributable requirements set forth herein.
(b) Subject to Section 1.9(b), immediately upon satisfaction of the requirements in Sections 2.1, 2.2, 2.4 or 7.1(n), as applicable, Collateral Agent shall, at Borrower’s sole cost and expense, execute and deliver to Borrower such instruments, prepared by Borrower and approved by Administrative Agent at the direction of Required Lenders (Lender agreeing, for the benefit of Borrower, that such approval, in the absence of an Event of Default (other than an Event of Default that would be eliminated after giving effect to the release of the Property proposed to be released) shall not be unreasonably withheld, conditioned or delayed), as shall be necessary to release the applicable Co-Borrower, the applicable Property and the applicable portion of any other Individual Properties that have been Collateral securing the Loan with respect to such Property and such Co-Borrower (excluding any amounts retained in any Collateral Accounts maintained with respect to such Property and such Co-Borrower) from the Liens of the Loan Documents. Any Property and any Co-Borrower released pursuant to this Section 2.052.2, shall not represent more than (xSection 2.4 or Section 7.1(n) 15% shall, effective upon such release, no longer be deemed a “Property” or a “Co-Borrower”, respectively, for any purpose of this Agreement or the other Loan Documents. At Borrower’s request, Collateral Agent will promptly assign the portion of the original principal Indebtedness secured by the portion of the Collateral to be released, as well as the applicable Mortgage encumbering such portion of the Collateral, to a third party specified by Borrower without representation or warranty (except that, if requested by Borrower, Lender shall join in such assignment for the express purpose of representing that (i) Lender owns such portion of the Indebtedness; (ii) Lender has not encumbered such portion of the Indebtedness, except for Liens to be discharged concurrently with such assignment; and (iii) the full amount of the Loan in any given twelve (12) consecutive month period, and (ythen-outstanding Indebtedness) in accordance with Section 1.9.
(c) Upon the aggregaterelease of a Property pursuant to this Section 2.2, 40% of Section 2.4, Section 2.5 and Section 7.1(n), Borrower shall have the original principal amount of right to apply any Reserve Excess to the Loan over the entire term prepayment of the Loan;
(i) Borrower shall have provided evidence reasonably acceptable , subject to Lender, that it has terminated the applicable Operating Lease with respect to such Individual Property and in accordance with the terms of Section 2.1.
(d) Administrative Agent shall remit to each Lender hereunder such Operating Lease including, without limitation, the payment by Borrower to the applicable Tenant Lender’s pro rata share of any compensation owing and all amounts received by Borrower Administrative Agent pursuant to such Tenant under such Operating Lease with respect this Section 2.2, on the day of Administrative Agent’s receipt thereof (or, if received later than 11:00 a.m., New York City time, on the next succeeding Business Day). Any funds received by Administrative Agent after 11:00 a.m., New York City time shall be deemed to have been received on the Individual Property being releasednext succeeding Business Day.
Appears in 1 contract
Samples: Loan Agreement (American Casino & Entertainment Properties LLC)
Property Releases. After the Lockout Period and provided no Event of Default exists, Borrower may obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) Lien of the Mortgage thereon (and the related Loan Documents) and the release of the Borrower’s obligations under the Loan Documents with respect to such Individual Property (other than those expressly stated to survive) (each such release or assignment a “Property Release”), upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lenderconditions:
(a) Borrower No Event of Default shall pay then exist (other than a non-monetary Event of Default that is specific to the Individual Property being released pursuant to this Section 2.9 and which non-monetary Event of Default would be cured as a result of the release of the applicable Individual Property);
(b) The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Amount Price for the applicable Individual Property, and such payment prepayment shall be deemed a voluntary prepayment of a portion of the Loan for all purposes hereunder;
(bc) Borrower shall pay provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to obtain a release of the Individual Property (the “Release Date”) (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lender any applicable Prepayment Premium plus, without duplication, provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property being released (together with all (i) accrued and unpaid interest on such prepaid the principal amount being prepaid, (ii) Breakage Costs, if applicable, (iii) Compensating Interest, if applicable and (iv) the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan through the end Amount of the Interest Period in which such payment or prepayment occursIndividual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(ce) Borrower shall submit to Lender, not less than seven ten (710) Business Days prior to the Payment Date on which the Property Release shall be madeDate, a release (or assignment) of the lien of the Mortgage Lien (and related Loan Documents) for such Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate in the jurisdiction each State in which the Individual Property is located and that contains would be satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Releasesuch release, together with a certificate from an officer of Borrower certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender and recordation thereof, effect such releases in accordance with the terms of this Agreement, and (iiiii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties subject to the Loan Documents not being released). Lender shall deliver such executed release of Lien for such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Release Date;
(df) After giving effect to such Property Releaserelease, Lender shall have determined that the Debt Service Coverage Ratio Yield for the Properties then remaining subject to the lien Liens of the Mortgage Mortgages shall be at least equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or 10.15% and (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently with the payment Yield for all of the Release Amountthen remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of the Individual Property, New Mezzanine Borrower, if any, provided that Borrower shall be permitted to make a partial prepayment of the related New Mezzanine Loan, if any, equal to Loan in accordance with the related release amount (as defined terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Releasethis Section;
(g) All reasonable Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and expenses expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred by Lender in connection with such the release of the Individual Property Release from the lien of the related Mortgage Instrument and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be paid by Borrower. Any assignments made by Lender shall be without recourserequired to pay any consent, representation processing, administrative or warranty by Lender and shall comply similar fee in connection with all applicable lawany prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Senior Mezzanine Borrower has complied with all of the Allocated terms and conditions set forth in the Senior Mezzanine Loan Amount for Agreement with respect to a release of the applicable Individual Property, when combined with the Allocated Loan Amount attributable security interest corresponding to the other Individual Properties that have been released release requested pursuant to this Section 2.05, shall not represent more than (x) 15% of the original principal amount of the Loan in any given twelve (12) consecutive month period, and (yii) in the aggregate, 40% of the original principal amount of the Loan over the entire term of the Loan;Senior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Senior Mezzanine Borrower if applicable; and
(i) Borrower shall have provided delivered evidence reasonably acceptable satisfactory to Lender, Lender that it (i) Junior Mezzanine Borrower has terminated complied with all of the applicable Operating Lease terms and conditions set forth in the Junior Mezzanine Loan Agreement with respect to a release of the security interest (if applicable) corresponding to the release requested pursuant to this Section and (ii) Junior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Junior Mezzanine Borrower (if applicable). Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, (a) on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property in accordance to be released together with the terms Allocated Loan Amounts of all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the original principal balance of the Loan (the “Free Prepayment Amount”); and (b) if the Loan is included in a REMIC Trust and the LTV Ratio exceeds or would exceed one hundred twenty five percent (125%) immediately after the release of the applicable Individual Property (such Operating Lease includingvalue to be determined, without limitationin Lender’s sole discretion, by any commercially reasonable method permitted to a REMIC Trust, based solely on the value of the real property excluding personal property and going concern value, if any; provided that Lender shall not require a re-appraisal or a broker’s opinion of value of the Properties if another commercially reasonable method of valuation of the real property permitted to a REMIC Trust is available to Lender at such time including an internally generated valuation), no release will be permitted unless (i) the principal balance of the Loan is prepaid by an amount not less than the greater of (A) the Release Price for the applicable Individual Property or (B) the least of one (1) of the following amounts: (I) only if the released Individual Property is sold, the payment by Borrower net proceeds of an arm’s length sale of the released Individual Property, to an unaffiliated Person, (II) the fair market value of the released Individual Property, at the time of the release, or (III) an amount such that the LTV Ratio immediately after the release of the applicable Tenant Individual Property is not greater than the LTV Ratio of any compensation owing by Borrower the Properties immediately prior to such Tenant under such Operating Lease with respect release, or (ii) Lender receives an opinion of counsel that the Securitization will not fail to maintain its status as a REMIC Trust as a result of the Individual Property being releasedrelease.
Appears in 1 contract
Property Releases. After the Lockout Period and provided no Event of Default exists, Mortgage Borrower may obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) Lien of the Mortgage thereon (and the related Mortgage Loan Documents) pursuant to Section 2.9 of the Mortgage Loan Agreement, and Senior Mezzanine Borrower may obtain the release of a portion of the Borrower’s obligations under the Loan Documents with respect Senior Mezzanine Collateral related to such Individual Property (other than those expressly stated to survive) (each such release or assignment a “Property Release”)pursuant to Section 2.9 of the Senior Mezzanine Loan Agreement, upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lenderconditions:
(a) Borrower No Event of Default shall pay then exist (other than a non-monetary Event of Default that is specific to the Release Amount for Individual Property being released pursuant to this Section 2.9 and which non-monetary Event of Default would be cured as a result of the release of the applicable Individual Property);
(i) The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates, and such payment prepayment shall be deemed a voluntary prepayment for all purposes hereunder, and (ii) the amount of a the outstanding principal balance of the Senior Mezzanine Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Loan Senior Mezzanine Collateral relates, and such prepayment shall be deemed a voluntary prepayment for all purposes hereunder;
(bc) Borrower shall pay provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to obtain a release of the Collateral related to the Individual Property (the “Release Date”) (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lender any applicable Prepayment Premium plus, without duplication, provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates (together with all (i) accrued and unpaid interest on such prepaid the principal amount being prepaid, (ii) Breakage Costs, if applicable, (iii) Compensating Interest, if applicable and (iv) the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan through the end Amount of the Interest Period in which such payment or prepayment occursIndividual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(ce) Borrower shall submit to Lender, not less than seven ten (710) Business Days prior to the Payment Date on which the Property Release shall be madeDate, a release (or assignment) of the lien of the Mortgage Lien (and related Loan Documents) for such the portion of the Collateral related to the Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate in the jurisdiction in which the Individual Property is located satisfactory to a prudent institutional lender and that contains shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Releasesuch release, together with a certificate from an officer of Borrower certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender, effect such releases in accordance with the terms of this Agreement, and (iiiii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties the Collateral subject to the Loan Documents not being released). Lender shall deliver such executed release of Lien for the portion of the Collateral related to such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Release Date;
(df) After giving effect to such Property Releaserelease, Lender shall have determined that the Debt Service Coverage Ratio Yield for the Properties then remaining subject to the lien Liens of the Mortgage Mortgages shall be at least equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or 9.56% and (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently with the payment Yield for all of the Release Amountthen remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of the Individual Property, New Mezzanine Borrower, if any, provided that Borrower shall be permitted to make a partial prepayment of the related New Mezzanine Loan, if any, equal to Loan in accordance with the related release amount (as defined terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Releasethis Section;
(g) All reasonable Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and expenses expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred by Lender in connection with such the release of the portion of the Collateral related to the Individual Property Release from the lien of the related Pledge Agreement and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be paid by Borrower. Any assignments made by Lender shall be without recourserequired to pay any consent, representation processing, administrative or warranty by Lender and shall comply similar fee in connection with all applicable lawany prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Mortgage Borrower has complied with all of the Allocated terms and conditions set forth in the Mortgage Loan Amount for Agreement with respect to a release of the applicable Individual Property, when combined with the Allocated Loan Amount attributable security interest corresponding to the other Individual Properties that have been released release requested pursuant to this Section 2.05, shall not represent more than (x) 15% of the original principal amount of the Loan in any given twelve (12) consecutive month period, and (yii) in the aggregate, 40% of the original principal amount of the Loan over the entire term of the Loan;Mortgage Lender has delivered (or is simultaneously delivering) such release to Mortgage Borrower (if applicable); and
(i) Borrower shall have provided delivered evidence reasonably acceptable satisfactory to Lender, Lender that it (i) Senior Mezzanine Borrower has terminated complied with all of the applicable Operating Lease terms and conditions set forth in the Senior Mezzanine Loan Agreement with respect to a release of the security interest (if applicable) corresponding to the release requested pursuant to this Section and (ii) Senior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Senior Mezzanine Borrower (if applicable). Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of the portion of the Collateral related to an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property in accordance to be released together with the terms Allocated Loan Amounts of such Operating Lease including, without limitation, all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the payment by Borrower to original principal balance of the applicable Tenant of any compensation owing by Borrower to such Tenant under such Operating Lease with respect to Loan (the Individual Property being released“Free Prepayment Amount”).
Appears in 1 contract
Samples: Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Property Releases. After the Lockout Period and provided no Event of Default exists, Mortgage Borrower may obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) Lien of the Mortgage thereon (and the related Mortgage Loan Documents) pursuant to Section 2.9 of the Mortgage Loan Agreement, and Borrower shall have the right to obtain the release of the Borrower’s obligations under portion of the Loan Documents with respect Collateral related to such Individual Property being released (other than those expressly stated to survive) (each such release or assignment a “Property Release”), upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lenderconditions:
(a) Borrower No Event of Default shall pay then exist (other than a non-monetary Event of Default that is specific to the Release Amount for Individual Property being released pursuant to this Section 2.9 and which non-monetary Event of Default would be cured as a result of the release of the applicable Individual Property);
(b) The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates, and such payment prepayment shall be deemed a voluntary prepayment of a portion of the Loan for all purposes hereunder;
(bc) Borrower shall pay provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to obtain a release of the Collateral related to the Individual Property (the “Release Date”) (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lender any applicable Prepayment Premium plus, without duplication, provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates (together with all (i) accrued and unpaid interest on such prepaid the principal amount being prepaid, (ii) Breakage Costs, if applicable, (iii) Compensating Interest, if applicable and (iv) the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan through the end Amount of the Interest Period in which such payment or prepayment occursIndividual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(ce) Borrower shall submit to Lender, not less than seven ten (710) Business Days prior to the Payment Date on which the Property Release shall be madeDate, a release (or assignment) of the lien of the Mortgage Lien (and related Loan Documents) for such the portion of the Collateral related to the Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate in the jurisdiction in which the Individual Property is located satisfactory to a prudent institutional lender and that contains shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Releasesuch release, together with a certificate from an officer of Borrower certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender, effect such releases in accordance with the terms of this Agreement, and (iiiii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties the Collateral subject to the Loan Documents not being released). Lender shall deliver such executed release of Lien for the portion of the Collateral related to such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Release Date;
(df) After giving effect to such Property Releaserelease, Lender shall have determined that the Debt Service Coverage Ratio Yield for the Properties then remaining subject to the lien Liens of the Mortgage Mortgages shall be at least equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or 10.15% and (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently with the payment Yield for all of the Release Amountthen remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of the Individual Property, New Mezzanine Borrower, if any, provided that Borrower shall be permitted to make a partial prepayment of the related New Mezzanine Loan, if any, equal to Loan in accordance with the related release amount (as defined terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Releasethis Section;
(g) All reasonable Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and expenses expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred by Lender in connection with such the release of the portion of the Collateral related to the Individual Property Release from the lien of the related Pledge Agreement and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be paid by Borrower. Any assignments made by Lender shall be without recourserequired to pay any consent, representation processing, administrative or warranty by Lender and shall comply similar fee in connection with all applicable lawany prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Mortgage Borrower has complied with all of the Allocated terms and conditions set forth in the Mortgage Loan Amount for Agreement with respect to a release of the applicable Individual Property, when combined with the Allocated Loan Amount attributable security interest corresponding to the other Individual Properties that have been released release requested pursuant to this Section 2.05, shall not represent more than (x) 15% of the original principal amount of the Loan in any given twelve (12) consecutive month period, and (yii) in the aggregate, 40% of the original principal amount of the Loan over the entire term of the Loan;Mortgage Lender has delivered (or is simultaneously delivering) such release to Mortgage Borrower (if applicable); and
(i) Borrower shall have provided delivered evidence reasonably acceptable satisfactory to Lender, Lender that it (i) Junior Mezzanine Borrower has terminated complied with all of the applicable Operating Lease terms and conditions set forth in the Junior Mezzanine Loan Agreement with respect to a release of the security interest (if applicable) corresponding to the release requested pursuant to this Section and (ii) Junior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Junior Mezzanine Borrower (if applicable). Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of the portion of the Collateral related to an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property in accordance to be released together with the terms Allocated Loan Amounts of such Operating Lease including, without limitation, all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the payment by Borrower to original principal balance of the applicable Tenant of any compensation owing by Borrower to such Tenant under such Operating Lease with respect to Loan (the Individual Property being released“Free Prepayment Amount”).
Appears in 1 contract
Samples: Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Property Releases. After the Lockout Period and provided no Event of Default exists, Borrower may obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) Lien of the Mortgage thereon (and the related Loan Documents) and the release of the Borrower’s obligations under the Loan Documents with respect to such Individual Property (other than those expressly stated to survive) (each such release or assignment a “Property Release”), upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lenderconditions:
(a) Borrower No Event of Default shall pay then exist (other than a non-monetary Event of Default that is specific to the Individual Property being released pursuant to this Section 2.9 and which non-monetary Event of Default would be cured as a result of the release of the applicable Individual Property);
(b) The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Amount Price for the applicable Individual Property, and such payment prepayment shall be deemed a voluntary prepayment of a portion of the Loan for all purposes hereunder;
(bc) Borrower shall pay provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to obtain a release of the Individual Property (the “Release Date”) (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lender any applicable Prepayment Premium plus, without duplication, provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property being released (together with all (i) accrued and unpaid interest on such prepaid the principal amount being prepaid, (ii) Breakage Costs, if applicable, (iii) Compensating Interest, if applicable and (iv) the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan through the end Amount of the Interest Period in which such payment or prepayment occursIndividual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(ce) Borrower shall submit to Lender, not less than seven ten (710) Business Days prior to the Payment Date on which the Property Release shall be madeDate, a release (or assignment) of the lien of the Mortgage Lien (and related Loan Documents) for such Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate in the jurisdiction each State in which the Individual Property is located and that contains would be satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Releasesuch release, together with a certificate from an officer of Borrower certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender and recordation thereof, effect such releases in accordance with the terms of this Agreement, and (iiiii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties subject to the Loan Documents not being released). Lender shall deliver such executed release of Lien for such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Release Date;
(df) After giving effect to such Property Releaserelease, Lender shall have determined that the Debt Service Coverage Ratio Yield for the Properties then remaining subject to the lien Liens of the Mortgage Mortgages shall be at least equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or 9.56% and (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently with the payment Yield for all of the Release Amountthen remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of the Individual Property, New Mezzanine Borrower, if any, provided that Borrower shall be permitted to make a partial prepayment of the related New Mezzanine Loan, if any, equal to Loan in accordance with the related release amount (as defined terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Releasethis Section;
(g) All reasonable Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and expenses expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred by Lender in connection with such the release of the Individual Property Release from the lien of the related Mortgage Instrument and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be paid by Borrower. Any assignments made by Lender shall be without recourserequired to pay any consent, representation processing, administrative or warranty by Lender and shall comply similar fee in connection with all applicable lawany prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Senior Mezzanine Borrower has complied with all of the Allocated terms and conditions set forth in the Senior Mezzanine Loan Amount for Agreement with respect to a release of the applicable Individual Property, when combined with the Allocated Loan Amount attributable security interest corresponding to the other Individual Properties that have been released release requested pursuant to this Section 2.05, shall not represent more than (x) 15% of the original principal amount of the Loan in any given twelve (12) consecutive month period, and (yii) in the aggregate, 40% of the original principal amount of the Loan over the entire term of the Loan;Senior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Senior Mezzanine Borrower if applicable; and
(i) Borrower shall have provided delivered evidence reasonably acceptable satisfactory to Lender, Lender that it (i) Junior Mezzanine Borrower has terminated complied with all of the applicable Operating Lease terms and conditions set forth in the Junior Mezzanine Loan Agreement with respect to a release of the security interest (if applicable) corresponding to the release requested pursuant to this Section and (ii) Junior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Junior Mezzanine Borrower (if applicable). Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, (a) on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property in accordance to be released together with the terms Allocated Loan Amounts of all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the original principal balance of the Loan (the “Free Prepayment Amount”); and (b) if the Loan is included in a REMIC Trust and the LTV Ratio exceeds or would exceed one hundred twenty five percent (125%) immediately after the release of the applicable Individual Property (such Operating Lease includingvalue to be determined, without limitationin Lender’s sole discretion, by any commercially reasonable method permitted to a REMIC Trust, based solely on the value of the real property excluding personal property and going concern value, if any; provided that Lender shall not require a re-appraisal or a broker’s opinion of value of the Properties if another commercially reasonable method of valuation of the real property permitted to a REMIC Trust is available to Lender at such time including an internally generated valuation), no release will be permitted unless (i) the principal balance of the Loan is prepaid by an amount not less than the greater of (A) the Release Price for the applicable Individual Property or (B) the least of one (1) of the following amounts: (I) only if the released Individual Property is sold, the payment by Borrower net proceeds of an arm’s length sale of the released Individual Property, to an unaffiliated Person, (II) the fair market value of the released Individual Property, at the time of the release, or (III) an amount such that the LTV Ratio immediately after the release of the applicable Tenant Individual Property is not greater than the LTV Ratio of any compensation owing by Borrower the Properties immediately prior to such Tenant under such Operating Lease with respect release, or (ii) Lender receives an opinion of counsel that the Securitization will not fail to maintain its status as a REMIC Trust as a result of the Individual Property being releasedrelease.
Appears in 1 contract
Property Releases. After the Lockout Period and provided (a) So long as no Event of Default existsis then continuing (other than an Event of Default that would be eliminated after giving effect to the release of the Property proposed to be released pursuant to Section 7.1(l)), any Co-Borrower may obtain the release of an Individual the Property owned by such Co-Borrower from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) Liens of the Mortgage thereon (and the related Loan Documents) Documents and the release of the Borrower’s such Co-Borrower from any and all of its obligations under this Agreement and the other Loan Documents with respect and such Property may be Transferred (whether directly or indirectly by transferring the ownership interests in the Co-Borrower that owns such Property) to such Individual Property an unaffiliated third party in a bona fide arms-length transaction (other than those expressly stated except that, if the release is being effectuated pursuant to survive) (each such release or assignment a “Property Release”the provisions of Section 7.1(l), Borrower may Transfer such Property to an Affiliate of Borrower) upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lenderconditions:
(ai) Borrower shall pay the deliver to Lender notice (a “Release Amount for the applicable Individual Property, and such payment shall be deemed a voluntary prepayment Notice”) of a portion its intent to release one or more of the Loan for all purposes hereunder;
(b) Borrower shall pay to Lender any applicable Prepayment Premium plusProperties, without duplication, interest on such prepaid amount of the Loan through the end of the Interest Period in which such payment or prepayment occurs;
(c) Borrower shall submit to Lender, not less than seven (7) notice must be given at least 10 Business Days and not more than 60 days prior to the Payment Date on Business Day upon which the release is to be made and shall specify the Property Release shall be made, a release (or assignment) of the lien of the Mortgage (and related Loan Documents) for such Individual Property for execution by LenderProperties that Borrower intends to release. Such release (or assignment) shall be in a form appropriate in the jurisdiction in which the Individual Property is located and that contains standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation promptly reimburse Lender reasonably requires to be delivered by Borrower in connection with the Release, together with a certificate from an officer of Borrower certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties subject to the Loan Documents not being released);
(d) After giving effect to such Property Release, the Debt Service Coverage Ratio for the Properties then remaining subject to the lien of the Mortgage shall be equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently with the payment of the Release Amount, New Mezzanine Borrower, if any, shall make a partial prepayment of the related New Mezzanine Loan, if any, equal to the related release amount (as defined in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Release;
(g) All reasonable actual out-of-pocket costs and expenses (including the reasonable fees and expenses of legal counsel and the Servicer) incurred by Lender in connection with a release pursuant to this Section 2.2.
(ii) At the time of such release, and as a condition thereto: (1) Borrower shall prepay a portion of the Loan, in accordance with Section 2.1, in an amount equal to the applicable Release Price and, in the event that such release occurs at any time during the Spread Maintenance Period, simultaneously pay to Lender any applicable Spread Maintenance Amount together with the other amounts specified in Section 2.1, to the extent applicable, and (2) DSCR for the Fiscal Quarter then most recently ended, recalculated to include only income and expense attributable to the Properties remaining after the release and to exclude the interest expense and principal payments on the aggregate amount to be prepaid, shall be equal to or greater than the applicable DSCR Threshold; provided, however, that, except with respect to a release of a Property Release pursuant to Section 7.1(l), the DSCR Threshold need not be satisfied if at the time of such sale Borrower (I) prepays the Loan in an amount set forth in clause (1) above, (II) deposits 100% of any remaining Excess Transfer Proceeds, after payment of the amounts required under clause (1) above and the corresponding sections of the Mezzanine Loan Agreements, into the Cash Reserve Account as additional collateral for the Loan (for the avoidance of doubt, any release of a Property pursuant to Section 7.1(l) shall be subject to the satisfaction of the DSCR Threshold, and Borrower shall not be released from such requirement by depositing 100% of the Excess Transfer Proceeds as set forth in clause this (II)), and (III) if a deposit into the Cash Reserve Account is made pursuant to clause (II) above during the Spread Maintenance Period, contemporaneously deposits into such account the applicable Spread Maintenance Amount payable with respect to the Loan and each Mezzanine Loan, as if the Loan and each Mezzanine Loan had been prepaid in such amount on a pro rata basis pursuant to clause (z) of the following sentence. Following such deposit, Borrower shall, in its sole discretion, have the option to either (y) maintain the Excess Transfer Proceeds in the Cash Reserve Account as additional collateral for the Loan or (z) cause all or any portion of the Excess Transfer Proceeds to be applied toward prepayment of the Loan and the Mezzanine Loans, pro rata in proportion to their respective initial principal amounts, together with the applicable Spread Maintenance Amount, if any, deposited contemporaneously with such Excess Transfer Proceeds pursuant to clause (III) above, which prepayment shall otherwise be made in accordance with Section 2.1 hereof and the corresponding sections of the Mezzanine Loan Documents, and the related Spread Maintenance Amount (if any) previously deposited into the Cash Reserve Account shall be paid by Borrower. Any assignments to Lender and Mezzanine Lender in accordance with the Loan Documents and the Mezzanine Loan Documents, as if such prepayment had been made by at the time of the applicable release.
(iii) Lender shall be without recourse, representation or warranty by have received a payoff letter and written confirmation from each Mezzanine Lender and shall comply that satisfactory escrow arrangements in connection with all applicable law;the release of such Property have been established.
(hiv) In the case of a release of the Stratosphere Excess Land, if the Release Price shall exceed 120% of the Allocated Loan Amount with respect thereto (the total amount of any such excess, the “SEL Excess Transfer Proceeds”), Borrower shall deposit 100% of such SEL Excess Transfer Proceeds into the Cash Reserve Account as additional collateral for the applicable Individual Property, when combined Loan together with the Allocated Loan Amount attributable amount of any Spread Maintenance Premium that would be payable thereon and with respect to the Mezzanine Loan if such amount were a prepayment of the Loan pursuant to Section 2.1 hereof and pursuant to Section 2.1 of the Mezzanine Loan Agreements, if any. Following such deposit, Borrower shall, in its sole discretion, have the option to either (y) maintain the SEL Excess Transfer Proceeds, together with the Spread Maintenance Premium payable thereon, if any, in the Cash Reserve Account as additional collateral for the Loan or (z) cause all or any portion of the SEL Excess Transfer Proceeds to be applied toward prepayment of the Loan and each Mezzanine Loan, pro rata in proportion to their respective initial principal amounts, which prepayments shall be made in accordance with Section 2.1 hereof and the corresponding sections of the Mezzanine Loan Documents, and the related Spread Maintenance Amount (if any) previously deposited into the Cash Reserve Account shall be paid to Lender and Mezzanine Lender in accordance with the Loan Documents and the Mezzanine Loan Documents, as if such prepayment had been made at the time of the applicable release; and
(v) In connection with a release of the Stratosphere, either (x) the Stratosphere Excess Land shall have theretofore been released or (y) Borrower shall cause the Stratosphere Excess Land to be released contemporaneously therewith in accordance with the requirements set forth herein.
(b) Immediately upon satisfaction of the requirements in Sections 2.1, 2.2, 2.4 or 7.1(l), Lender shall execute and deliver to Borrower such instruments, prepared by Borrower and approved by Lender (which approval, in the absence of an Event of Default (other Individual Properties than an Event of Default that have been would be eliminated after giving effect to the release of the Property proposed to be released) shall not be unreasonably withheld, conditioned or delayed), as shall be necessary to release the applicable Co-Borrower, the applicable Property and the applicable portion of any other Collateral securing the Loan with respect to such Property and such Co-Borrower (excluding any amounts retained in any Collateral Accounts maintained with respect to such Property and such Co-Borrower) from the Liens of the Loan Documents. Any Property and any Co-Borrower released pursuant to this Section 2.052.2, shall not represent more than (xSection 2.4 or Section 7.1(l) 15% shall, effective upon such release, no longer be deemed a “Property” or a “Co-Borrower”, respectively, for any purpose of this Agreement or the other Loan Documents. At Borrower’s request, Lender will promptly assign the portion of the original principal Indebtedness secured by the portion of the Collateral to be released, as well as the applicable Mortgage encumbering such portion of the Collateral, to a third party specified by Borrower without representation or warranty (except that (i) Lender owns such portion of the Indebtedness; (ii) Lender has not encumbered such portion of the Indebtedness, except for Liens to be discharged concurrently with such assignment; and (iii) the full amount of the Loan in any given twelve (12) consecutive month period, and (ythen-outstanding Indebtedness) in accordance with Section 1.8.
(c) Upon the aggregaterelease of a Property pursuant to this Section 2.2, 40% of Section 2.4 or Section 7.1(l), Borrower shall have the original principal amount right to apply the Reserve Excess to the prepayment of the Loan over the entire term of the and each Mezzanine Loan;
(i) Borrower shall have provided evidence reasonably acceptable , pro rata in proportion to Lendertheir respective initial principal amounts, that it has terminated the applicable Operating Lease with respect subject to such Individual Property and in accordance with the terms of such Operating Lease including, without limitation, the payment by Borrower to the applicable Tenant of any compensation owing by Borrower to such Tenant under such Operating Lease with respect to the Individual Property being releasedSection 2.1.
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Samples: Loan Agreement (American Casino & Entertainment Properties LLC)
Property Releases. After the Lockout Period and provided (a) So long as no Event of Default existsor material monetary Default is then continuing, Borrower any Obligor may from time to time obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third partiesof its Properties (each, a "Released Property") from the Liens of the Mortgage thereon (Loan Documents and, to the extent after such release such Obligor no longer owns any Property subject to the Loan or any Defeasance Collateral, Lender shall release such Obligor from all liabilities and the related Loan Documents) and the release of the Borrower’s obligations arising under the Loan Documents which by their terms do not survive repayment of the Loan, provided the following conditions are met with respect to such Individual Property (other than those expressly stated to survive) (each such release or assignment a “Property Release”), upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lenderProperty:
(ai) Borrower the Borrowers shall pay (x) prepay any Loan or portion thereof to the Release Amount for extent permitted hereunder, or repay any Loan at maturity or repay the applicable Individual PropertySeven-Year Fixed Rate Principal Reduction when due, and such payment shall be deemed a voluntary prepayment of and/or (y) Defease all or a portion of any Fixed Rate Loan in the Loan for all purposes hereundermanner described in clause (ii) below, in such proportions as the Borrowers shall elect, provided that the sum of the amount of such Notes so prepaid or repaid, as the case may be, and the amount of the Fixed Rate Loans so Defeased shall be equal to, or if the Borrowers elect, greater than, the applicable Release Price;
(bii) Borrower if the Borrowers elect to Defease all or any portion of any Fixed Rate Loan, the Borrowers shall deliver the following to or at the direction of Lender with respect to Fixed Rate Notes evidencing such Fixed Rate Loan (in the case of a partial Defeasance of a Fixed Rate Loan, each such Defeasance shall be applied toward the applicable Fixed Rate Notes sequentially (i.e., first to the Fixed Rate Note corresponding to the highest-rated Certificate in the Securitization until it has been Defeased in full, next to the Fixed Rate Note corresponding to the second-highest rated Certificate in the Securitization until it has been Defeased in full, and so on)):
(1) Defeasance Collateral sufficient to provide payments on or prior to, and in any event as close as possible to, all successive Payment Dates through the third Payment Date prior to the Seven-Year Maturity Date or the Ten-Year Maturity Date, as the case may be, in an amount sufficient (x) to pay to Lender any applicable Prepayment Premium plusthe interest and scheduled principal (including the Seven Year Fixed Rate Loan Principal Reduction, without duplication, interest if applicable) due on such prepaid amount Payment Dates on the portion of such Fixed Rate Note that is Defeased and (y) to repay the Loan through unamortized portion of such portion of such Fixed Rate Note on the end of third Payment Date prior to the Interest Period in which such payment Seven-Year Maturity Date or prepayment occursthe Ten-Year Maturity Date, as the case may be;
(c2) Borrower shall submit written confirmation from an independent certified public accounting firm that such Defeasance Collateral is sufficient to provide the payments described in clause (1) above;
(3) a security agreement, in form and substance reasonably satisfactory to Lender, not less than seven (7) Business Days prior to the Payment Date on which Borrowers and the Property Release shall be madeRating Agencies, a release (or assignment) of the lien of the Mortgage (and related Loan Documents) for such Individual Property for execution by Lender. Such release (or assignment) shall be creating in a form appropriate in the jurisdiction in which the Individual Property is located and that contains standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Release, together with a certificate from an officer of Borrower certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will not impair or otherwise adversely affect the Liens, security interests and other rights favor of Lender under the Loan Documents not being released or assigned a first priority perfected security interest in such Defeasance Collateral (or as to the parties to the Loan Documents and Properties subject to the Loan Documents not being releaseda "Defeasance Pledge Agreement");
(d4) After giving effect to such Property Release, the Debt Service Coverage Ratio an opinion of counsel for the Properties then remaining Borrowers, in form and substance reasonably satisfactory to Lender and delivered by counsel reasonably satisfactory to Lender (and Lender hereby confirms that such opinion from Piper Marbury Rudnick & Wolfe shall be acceptable counsex), xxxxxxx xxxx xxx Defxxxxxce Pledge Agreement has been duly authorized and is enforceable against the applicable Borrower in accordance with its terms (subject to the lien of the Mortgage shall be equal customary qualifications) and that Lender has a perfected first priority security interest in such Defeasance Collateral (subject to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or (ii) the Debt Service Coverage Ratio immediately prior to the Property Releasecustomary qualifications);
(e5) Concurrently with such other customary certificates, opinions, documents or instruments as Lender and the payment Rating Agencies may reasonably request; and
(6) each of the Release Amount, New Mezzanine Borrower, if any, Rating Agencies shall make a partial prepayment have delivered Rating Confirmation with respect to the satisfaction of the related New Mezzanine Loan, if any, equal to the related release amount (as defined in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;foregoing requirements.
(fiii) Borrower With respect to any Fixed Rate Note that is partially Defeased, the Obligors shall execute and deliver all documents necessary to Lender any amendments amend and restate such Fixed Rate Note with two substitute notes: one note having a principal balance equal to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Release;
(g) All reasonable costs and expenses incurred by Lender in connection with such Property Release shall be paid by Borrower. Any assignments made by Lender shall be without recourse, representation or warranty by Lender and shall comply with all applicable law;
(h) the Allocated Loan Amount for the applicable Individual Property, when combined with the Allocated Loan Amount attributable to the other Individual Properties that have been released pursuant to this Section 2.05, shall not represent more than (x) 15% Defeased portion of the original Fixed Rate Note (the "Defeased Note") and one note having a principal amount of balance equal to the Loan in any given twelve (12) consecutive month period, and (y) in the aggregate, 40% undefeased portion of the original principal amount Fixed Rate Note (the "Undefeased Note"). The Undefeased Note may be the subject of the Loan over the entire term of the Loan;
(i) Borrower shall have provided evidence reasonably acceptable to Lender, that it has terminated the applicable Operating Lease with respect to such Individual Property a further Defeasance in accordance with the terms of such Operating Lease includingthis Section 2.2 (the term "Fixed Rate Note", without limitationas used in this Section 2.2, the payment by Borrower being deemed to refer to the applicable Tenant Undefeased Note that is the subject of any compensation owing by Borrower to such Tenant under such Operating Lease with respect to the Individual Property being releasedfurther Defeasance).
Appears in 1 contract
Property Releases. After the Lockout Period and provided (a) So long as no Event of Default existsis then continuing and all amounts then due and owing to Lender have been paid in full, Borrower may from time to time obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) of the Mortgage thereon (and Properties or direct or indirect equity interests therein from the related Loan Documents) and the release Liens of the Borrower’s obligations under the Loan Documents in connection with respect a sale to such Individual Property an unaffiliated third-party in an arms’-length transaction or a Permitted Affiliate Sale, provided that: (other than those expressly stated to survive1) (each at the time of such release or assignment a “Property Release”), upon the satisfaction (but provided that no Event of each of the following conditions in a manner satisfactory to a prudent mortgage lender:
(a) Borrower shall pay the Release Amount for the applicable Individual Property, Default has occurred and such payment shall be deemed a voluntary prepayment of a portion of the Loan for all purposes hereunder;
(b) Borrower shall pay to Lender any applicable Prepayment Premium plus, without duplication, interest on such prepaid amount of the Loan through the end of the Interest Period in which such payment or prepayment occurs;
(c) Borrower shall submit to Lenderis continuing, not less than seven (7) Business Days prior to the Payment Date on which the Property Release shall be made, a release (or assignment) of the lien of the Mortgage (and related Loan Documents) for such Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate in the jurisdiction in which the Individual Property is located and that contains standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Releasetransfer of any Disposition Asset), together with a certificate from an officer of Borrower certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under shall prepay the Loan Documents not being released or assigned (or as in accordance with Section 2.1 in an amount equal to the parties applicable Release Price, plus any additional amount required to be prepaid in accordance with Section 2.2(c) in order to reduce the Release Price Deficit, which aggregate prepayment shall be accompanied by the other amounts specified in Section 2.1, including the applicable Prepayment Fee if such prepayment is made prior to the Loan Documents and Properties subject Par Prepayment Date, (2) except with respect to the Loan Documents not being released);
(d) After giving effect sale of the Xxxx Portfolio to such Property Releasean unaffiliated third party, the Debt Service Coverage Ratio DSCR for the Test Period most recently ended, recalculated to include only income and expense attributable to Borrower’s interest in the Properties then remaining subject after the contemplated release and to exclude the lien of interest expense and principal payments on the Mortgage aggregate amount to be prepaid, shall be equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or (ii) the Debt Service Coverage Ratio than DSCR immediately prior to such release (as reasonably determined by Lender) (for these purposes, in the Property Release;
(e) Concurrently with the payment case of the Release Amountsale of a Mortgage Loan Collateral Property, New Mezzanine Borrower, if any, DSCR shall make a partial be adjusted to ignore the effect of so-called “rate creep” resulting from the fact that the prepayment of the related New Mezzanine LoanLoan and the Mortgage Loan will not result in a pro-rata reduction of their respective principal amounts), if any(3) after giving effect to such release, equal the sum of all Allocated Loan Amounts of each Property directly or indirectly subject to the related release amount (as defined in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance Lien of the related New Mezzanine Loan, if any, pursuant to Loan Documents that constitutes Senior Collateral (without duplication) shall not be less than 120% of the New Mezzanine Loan Documents;
Principal Indebtedness and (f4) Borrower shall execute and deliver to reimburse Lender for any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Release;
(g) All actual reasonable out-of-pocket costs and expenses incurred by Lender in connection with such Property Release shall be paid by Borrowerthis Section 2.2 (including the reasonable fees and expenses of legal counsel and the Servicer). Any assignments made by Lender shall be without recourse, representation or warranty by Lender and shall comply with all applicable law;
(h) the Allocated Loan Amount for the applicable Individual Property, when combined with the Allocated Loan Amount attributable Notwithstanding anything to the other Individual Properties that have been released pursuant to contrary in this Section 2.05, shall not represent more than 2.2(a) (x) 15the release price for a Disposition Asset shall be zero, subject to the requirement specified in Section 2.1(c)(iii), and the foregoing requirements set forth in clauses (1) through (4) inclusive shall not apply, (y) with respect to the release of any Joint Venture Property, the Release Price applicable to such Property shall be adjusted to reflect the Joint Venture Owner’s percentage interest in the Joint Venture Property as of the date of any such release and (z) the release price for any asset acquired by a Borrower from and after the date hereof (to the extent Borrower is permitted to acquire any such asset pursuant this Agreement) shall be zero, and the foregoing requirements set forth in clauses (1) through (4) inclusive shall not apply.
(b) Upon satisfaction of the requirements set forth in Sections 2.1 and 2.2, Lender will execute and deliver to Borrower such instruments, prepared by Borrower and approved by Lender, as shall be necessary to release the applicable Property or Properties from the Liens of the Loan Documents or to assign the applicable portion of such Liens to a third party to the extent necessary to avoid the incurrence of mortgage recording taxes.
(c) Notwithstanding anything herein to the contrary, in the case of a sale of a Property to an unaffiliated third party in an arms’-length transaction, if the Net Proceeds are less than the amount specified in clause (B)(x) of the definition of “Unaffiliated Release Price”, then the amount of principal payable by Borrower under Section 2.2(a)(1) in connection with the release of such Property shall be 100% of such Net Proceeds, subject to the original principal amount following:
(i) the Release Price Deficit (as defined below) may not at any time exceed $30,000,000; and
(ii) if and to the extent the Release Price Deficit is greater than zero, all Excess Transfer Proceeds shall be applied toward prepayment of the Loan in any given twelve (12) consecutive month period, and (y) in the aggregate, 40% of the original principal amount of the Loan over the entire term of the Loan;
(i) Borrower shall have provided evidence reasonably acceptable to Lender, that it has terminated the applicable Operating Lease with respect to such Individual Property in accordance with Section 2.1 (and shall be accompanied by any applicable Prepayment Fee) until the terms of such Operating Lease including, without limitation, the payment by Borrower Release Price Deficit is reduced to the applicable Tenant of any compensation owing by Borrower to such Tenant under such Operating Lease with respect to the Individual Property being releasedzero.
Appears in 1 contract
Property Releases. After the Lockout Period and provided no Event of Default exists, Mortgage Borrower may obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) Lien of the Mortgage thereon (and the related Mortgage Loan Documents) pursuant to Section 2.9 of the Mortgage Loan Agreement, and Borrower shall have the right to obtain the release of the Borrower’s obligations under portion of the Loan Documents with respect Collateral related to such Individual Property being released (other than those expressly stated to survive) (each such release or assignment a “Property Release”), upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lenderconditions:
(a) Borrower No Event of Default shall pay then exist (other than a non-monetary Event of Default that is specific to the Release Amount for Individual Property being released pursuant to this Section 2.9 and which non-monetary Event of Default would be cured as a result of the release of the applicable Individual Property);
(b) The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates, and such payment prepayment shall be deemed a voluntary prepayment of a portion of the Loan for all purposes hereunder;
(bc) Borrower shall pay provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to obtain a release of the Collateral related to the Individual Property (the “Release Date”) (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lender any applicable Prepayment Premium plus, without duplication, provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates (together with all (i) accrued and unpaid interest on such prepaid the principal amount being prepaid, (ii) Breakage Costs, if applicable, (iii) Compensating Interest, if applicable and (iv) the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan through the end Amount of the Interest Period in which such payment or prepayment occursIndividual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(ce) Borrower shall submit to Lender, not less than seven ten (710) Business Days prior to the Payment Date on which the Property Release shall be madeDate, a release (or assignment) of the lien of the Mortgage Lien (and related Loan Documents) for such the portion of the Collateral related to the Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate in the jurisdiction in which the Individual Property is located satisfactory to a prudent institutional lender and that contains shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Releasesuch release, together with a certificate from an officer of Borrower certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender, effect such releases in accordance with the terms of this Agreement, and (iiiii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties the Collateral subject to the Loan Documents not being released). Lender shall deliver such executed release of Lien for the portion of the Collateral related to such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Release Date;
(df) After giving effect to such Property Releaserelease, Lender shall have determined that the Debt Service Coverage Ratio Yield for the Properties then remaining subject to the lien Liens of the Mortgage Mortgages shall be at least equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or 9.95% and (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently with the payment Yield for all of the Release Amountthen remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of the Individual Property, New Mezzanine Borrower, if any, provided that Borrower shall be permitted to make a partial prepayment of the related New Mezzanine Loan, if any, equal to Loan in accordance with the related release amount (as defined terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Releasethis Section;
(g) All reasonable Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and expenses expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred by Lender in connection with such the release of the portion of the Collateral related to the Individual Property Release from the lien of the related Pledge Agreement and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be paid by Borrower. Any assignments made by Lender shall be without recourserequired to pay any consent, representation processing, administrative or warranty by Lender and shall comply similar fee in connection with all applicable lawany prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Mortgage Borrower has complied with all of the Allocated terms and conditions set forth in the Mortgage Loan Amount for Agreement with respect to a release of the applicable Individual Property, when combined with the Allocated Loan Amount attributable security interest corresponding to the other Individual Properties that have been released release requested pursuant to this Section 2.05, shall not represent more than (x) 15% of the original principal amount of the Loan in any given twelve (12) consecutive month period, and (yii) in the aggregate, 40% of the original principal amount of the Loan over the entire term of the Loan;Mortgage Lender has delivered (or is simultaneously delivering) such release to Mortgage Borrower (if applicable); and
(i) Borrower shall have provided delivered evidence reasonably acceptable satisfactory to Lender, Lender that it (i) Junior Mezzanine Borrower has terminated complied with all of the applicable Operating Lease terms and conditions set forth in the Junior Mezzanine Loan Agreement with respect to a release of the security interest (if applicable) corresponding to the release requested pursuant to this Section and (ii) Junior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Junior Mezzanine Borrower (if applicable). Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of the portion of the Collateral related to an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property in accordance to be released together with the terms Allocated Loan Amounts of such Operating Lease including, without limitation, all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the payment by Borrower to original principal balance of the applicable Tenant of any compensation owing by Borrower to such Tenant under such Operating Lease with respect to Loan (the Individual Property being released“Free Prepayment Amount”).
Appears in 1 contract
Samples: Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Property Releases. After (a) On or after the Lockout Period and Permitted Prepayment Date, provided no Event of Default existsis then continuing and all amounts then due and owing to Lender have been paid in full, Borrower may shall have the right, at its option, on not less than 30 days’ prior written notice to Lender, to obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) of the Mortgage thereon Properties from the Liens of the Loan Documents in connection with a bona-fide sale to an unaffiliated third party, provided that the following conditions shall have been satisfied:
(i) Borrower shall prepay the Loan, in accordance with Section 2.1, in an amount equal to the applicable Release Price, which prepayment shall be accompanied by the other amounts specified in Section 2.1.
(ii) Unless the Loan is repaid in full, Debt Yield for the Test Period then most recently ended, recalculated to include only income and expense attributable to the related Properties remaining after the contemplated release, shall be no less than the Debt Yield Threshold.
(iii) If any portion of the Loan Documents) and has been Securitized in a REMIC, after giving effect to the release of the Borrower’s obligations under Property or Properties, the Lender 80% Determination shall have been satisfied or, if the same is not so satisfied, then Borrower shall have prepaid the Loan Documents with respect in an amount equal to such Individual Property the lesser of (other than those expressly stated to survivex) (each such release or assignment a “Property Release”), upon the satisfaction of each fair market value of the following conditions Property or Properties so released (as determined by Lender in a manner satisfactory its sole discretion using any commercially reasonable method permitted to a prudent mortgage lender:REMIC and excluding the value attributable to any property that is not an interest in real property within the meaning of Section 860(G)(a)(3)(A) of the Code) and (y) the amount necessary to obtain a Lender 80% Determination.
(aiv) Borrower shall pay the Release Amount for the applicable Individual Property, and such payment shall be deemed a voluntary prepayment of a If any portion of the Loan for all purposes hereunder;
(b) Borrower shall pay to Lender any applicable Prepayment Premium plus, without duplication, interest on such prepaid amount of the Loan through the end of the Interest Period in which such payment or prepayment occurs;
(c) Borrower shall submit to Lender, not less than seven (7) Business Days prior to the Payment Date on which the Property Release shall be made, a release (or assignment) of the lien of the Mortgage (and related Loan Documents) for such Individual Property for execution by Lender. Such release (or assignment) shall be has been Securitized in a form appropriate in the jurisdiction in which the Individual Property is located and that contains standard provisions, if any, protecting the rights of the releasing lender. In additionREMIC, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Release, together with a certificate from an officer of Borrower certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties subject to the Loan Documents not being released);
(d) After giving effect to such Property Release, the Debt Service Coverage Ratio for the Properties then remaining subject to the lien of the Mortgage shall be equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently with the payment of the Release Amount, New Mezzanine Borrower, if any, shall make a partial prepayment of the related New Mezzanine Loan, if any, equal to the related release amount (as defined in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender an opinion of counsel in form and substance which would be acceptable to a prudent lender of securitized commercial mortgage loans acting reasonably, stating, among other things, that any amendments REMIC formed pursuant to the Loan Documents reasonably deemed necessary by Lender a Securitization will not fail to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender maintain its status as a REMIC as a result of the Property Release;such release and will not be subject to tax on any “prohibited transactions” or “prohibited contributions” as a result of such release.
(gv) All reasonable Borrower shall reimburse Lender for any actual out-of-pocket costs and expenses incurred by Lender in connection with such Property Release shall be paid by Borrower. Any assignments made by Lender shall be without recourse, representation or warranty by Lender this Section 2.2 (including the reasonable fees and shall comply with all applicable law;expenses of legal counsel and the reasonable out-of-pocket expenses of the Servicer).
(hb) the Allocated Loan Amount for the applicable Individual Property, when combined with the Allocated Loan Amount attributable to the other Individual Properties that have been released pursuant to this Section 2.05, shall not represent more than (x) 15% Upon satisfaction of the original principal amount of the Loan requirements set forth in any given twelve (12) consecutive month periodthis Section, Lender will execute and (y) in the aggregatedeliver to Borrower such instruments, 40% of the original principal amount of the Loan over the entire term of the Loan;
(i) Borrower shall have provided evidence reasonably acceptable to Lender, that it has terminated the applicable Operating Lease with respect to such Individual Property in accordance with the terms of such Operating Lease including, without limitation, the payment prepared by Borrower to the applicable Tenant of any compensation owing by Borrower to such Tenant under such Operating Lease with respect to the Individual Property being released.and reasonably 45 [AM_ACTIVE 400655008_12]
Appears in 1 contract
Samples: Loan Agreement (Hartman Short Term Income Properties XX, Inc.)
Property Releases. After the Lockout Period and provided (a) So long as no Event of Default existsis then continuing (other than an Event of Default that would be eliminated after giving effect to the release of the Mortgaged Property proposed to be released pursuant to Section 7.1(m)), Borrower may from time to time cause Property Owner to obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) of the Mortgaged Properties from the Liens of the Mortgage thereon Loan Documents and cause Property Owner to Transfer such Mortgaged Property to an unaffiliated third party in an arms’-length transaction (and the related Loan Documents) and except that, if the release is being effectuated pursuant to the provisions of the Borrower’s obligations under the Loan Documents with respect to such Individual Property (other than those expressly stated to survive) (each such release or assignment a “Property Release”Section 7.1(m), Borrower may cause Property Owner to Transfer such Mortgaged Property to an Affiliate of Borrower) upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lenderconditions:
(ai) Borrower shall pay the deliver to Lender notice (a “Release Amount for the applicable Individual Property, and such payment shall be deemed a voluntary prepayment Notice”) of a portion its intent to cause Property Owner to release one or more of the Loan for all purposes hereunder;
(b) Borrower shall pay to Lender any applicable Prepayment Premium plusMortgaged Properties, without duplication, interest on such prepaid amount of the Loan through the end of the Interest Period in which such payment or prepayment occurs;
(c) Borrower shall submit to Lender, not less than seven (7) notice must be given at least 10 Business Days and not more than 60 days prior to the Payment Date on Business Day upon which the release is to be made and shall specify the Mortgaged Property Release shall be made, a release (or assignment) of the lien of the Mortgage (and related Loan Documents) for such Individual Mortgaged Properties that Borrower intends to cause Property for execution by LenderOwner to release. Such release (or assignment) shall be in a form appropriate in the jurisdiction in which the Individual Property is located and that contains standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation promptly reimburse Lender reasonably requires to be delivered by Borrower in connection with the Release, together with a certificate from an officer of Borrower certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties subject to the Loan Documents not being released);
(d) After giving effect to such Property Release, the Debt Service Coverage Ratio for the Properties then remaining subject to the lien of the Mortgage shall be equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently with the payment of the Release Amount, New Mezzanine Borrower, if any, shall make a partial prepayment of the related New Mezzanine Loan, if any, equal to the related release amount (as defined in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Release;
(g) All reasonable actual out-of-pocket costs and expenses (including the reasonable fees and expenses of legal counsel and the Servicer) incurred by Lender in connection with such Property Release shall be paid by Borrower. Any assignments made by Lender shall be without recourse, representation or warranty by Lender and shall comply with all applicable law;
(h) the Allocated Loan Amount for the applicable Individual Property, when combined with the Allocated Loan Amount attributable to the other Individual Properties that have been released a release pursuant to this Section 2.052.2.
(ii) At the time of such release: (1) Borrower shall prepay a portion of the Loan, shall not represent more than in accordance with Section 2.1, in an amount equal to (x) 15subject to Section 2.2(c), the applicable Release Price, plus (y) any additional amount required to be prepaid in accordance with Section 2.2(c) in order to reduce the Release Price Deficit, which prepayment, in each case under clauses (x) and (y), shall be accompanied by the applicable Spread Maintenance Amount, which prepayment shall be accompanied by the other amounts specified in Section 2.1, to the extent applicable (and without duplication of any amounts otherwise payable by Borrower under this Agreement) and (2) DSCR for the Fiscal Quarter then most recently ended, recalculated to include only income and expense attributable to the Mortgaged Properties remaining after the release and to exclude the interest expense and principal payments on the aggregate amount to be prepaid, shall be equal to or greater than the applicable DSCR Threshold; provided, however, that, except with respect to a release of a Mortgaged Property pursuant to Section 7.1(m), the DSCR Threshold need not be satisfied if at the time of such sale Borrower (I) prepays the Loan in an amount set forth in clause (1) above, (II) causes Property Owner to deposit 100% of any remaining Excess Transfer Proceeds, after payment of the amount required under clause (1)(y) above and the corresponding sections of the Mortgage Loan Agreement and each of the Junior Mezzanine Loan Agreements, into the Mortgage Loan Cash Reserve Account as additional collateral for the Loan (for the avoidance of doubt, any release of a Mortgaged Property pursuant to Section 7.1(m) shall be subject to the satisfaction of the DSCR Threshold, and Borrower shall not be released from such requirement by causing Property Owner to deposit 100% of the original principal amount Excess Transfer Proceeds as set forth in clause (II) above) and (III) during the continuance of the Spread Maintenance Period, pays, or causes to be paid, to Lender, Mortgage Lender and each Junior Mezzanine Lender the applicable Spread Maintenance Amount on the amount so deposited into the Mortgage Loan Cash Reserve Account as if the Loan, the Mortgage Loan and the Junior Mezzanine Loans had been prepaid in any given twelve such amount on a pro rata basis pursuant to clause (12z) consecutive month periodof the following sentence. Following such deposit, and Borrower shall, in its sole discretion, have the option to either (y) maintain the Excess Transfer Proceeds in the aggregate, 40% Mortgage Loan Cash Reserve Account as additional collateral for the Loan or (z) cause all or any portion of the original principal amount of the Loan over the entire term Excess Transfer Proceeds to be applied toward prepayment of the Loan;, the Mortgage Loan and the Junior Mezzanine Loans, pro rata in proportion to their respective principal amounts, which prepayments shall be made in accordance with Section 2.1 hereof and the corresponding sections of the Mortgage Loan Documents and the Junior Mezzanine Loan Documents (except that the Spread Maintenance Amount, which shall have been paid upon deposit of funds into the Mortgage Loan Cash Reserve Account, need not be paid a second time upon prepayment).
(iii) Lender shall have received a payoff letter or written confirmation from Mortgage Lender and each Junior Mezzanine Lender that satisfactory escrow arrangements in connection with the release of such Mortgaged Property have been established.
(b) Immediately upon satisfaction of the requirements in Sections 2.2(a)(i) and (ii), upon request of and at the sole cost and expense of Borrower, Lender shall provide to Mortgage Lender written confirmation that satisfactory escrow arrangements in connection with the release of such Mortgaged Property have been established. Any Mortgaged Property released from the Liens of the Mortgage Loan Documents pursuant to this Section 2.2 or Section 7.1(m) shall, effective upon such release, no longer be deemed a “Mortgaged Property” or a “Property” for any purpose of this Agreement or the other Loan Documents.
(c) Notwithstanding anything herein to the contrary, if the Net Proceeds of a Transfer of a Mortgaged Property are less than the sum of its Minimum Release Price and its aggregate “Minimum Release Price” under and as defined in the Mortgage Loan Agreement and each of the Junior Mezzanine Loan Agreements, then the amount payable by Borrower under Section 2.2(a)(ii)(1)(x) in connection with its release shall be the Mezzanine A Loan Percentage of such Net Proceeds, subject to the following:
(i) Borrower the Release Price Deficit (as defined below) may not at any time exceed 2% of the Principal Indebtedness;
(ii) after prepayments have been made that reduce the Principal Indebtedness to one-half of the Loan Amount, no release of a Mortgaged Property shall have provided evidence reasonably acceptable be permitted that would result in any increase in the Release Price Deficit; and
(iii) if and to Lenderthe extent the Release Price Deficit is greater than zero, that it has terminated all Excess Transfer Proceeds shall be applied toward prepayment of the applicable Operating Lease with respect to such Individual Property in accordance with the terms of such Operating Lease including, without limitationLoan, the payment by Borrower Mortgage Loan and each Junior Mezzanine Loan in proportion to the applicable Tenant of any compensation owing by Borrower Release Price Deficit and the “Release Price Deficits” under and as defined in the Mortgage Loan and each Junior Mezzanine Loan Agreement, respectively, in each case until reduced to such Tenant under such Operating Lease with respect to the Individual Property being releasedzero.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (W2007 Grace Acquisition I Inc)
Property Releases. After the Lockout Period and provided 00000000.0.XXXXXXXX Provided that no Event of Default existsshall then exist, Borrower may and may cause Mortgage Borrower to (w) obtain the release of all or any of the Select Release Properties in connection with a Select Release, (x) obtain the release of all or any of the Prime ROFO Release Properties in connection with a Prime ROFO Release or (y) obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) Lien of the Mortgage thereon (and the related Mortgage Loan Documents) and (such release, a “Property Release”) and, in each case, obtain the release of the applicable Borrower’s obligations under the Loan Documents with respect to such Individual Property (other than those expressly stated to survive) with respect to the Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, then being released and, only to the extent such Mortgage Borrower no longer owns any Property, obtain the release of the Collateral related to such Mortgage Borrower (each such release obligations or assignment a Collateral being released in accordance with the foregoing, the “Property ReleaseReleased Collateral”), upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lenderconditions:
(a) Borrower The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall pay equal or exceed the applicable Release Amount Price for the applicable Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, being released and such payment prepayment shall be deemed a voluntary prepayment of a portion of the Loan for all purposes hereunder;
(b) Borrower shall pay provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of (A) Mortgage Borrower’s request to obtain (i) a release of an Individual Property in connection with a Property Release or a Prime ROFO Release or (ii) to the extent Mortgage Borrower has not yet elected to release all or any of the Select Release Properties pursuant to a Select Release, a release of all or any of the Select Release Properties in connection with a Select Release, and (B) its request to obtain the release, if applicable, of the related Released Collateral (the “Release Date”), which notice shall specify the Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, that are the subject of such release and whether such release constitutes a Select Release or a Prime ROFO Release (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lender provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the notice of intended release). For the avoidance of doubt, Mortgage Borrower’s right to release all or any applicable Prepayment Premium plus, without duplication, interest on such prepaid amount of the Loan through Select Release Properties in connection with a Select Release is a one-time right exercisable at any time during the end term of the Interest Period Mortgage Loan and to the extent that Mortgage Borrower elects to exercise its one-time right to a Select Release pursuant to and in which accordance with the Mortgage Loan Agreement, Mortgage Borrower shall have no further right to make such payment or prepayment occursan election, regardless of whether all of the Select Release Properties were released in connection with such Select Release. Any Select Release Property not released in connection with a Select Release may be released in accordance with this Section in the same manner as any Individual Property in connection with a Property Release;
(c) Borrower shall submit to Lender, not less than seven (7) Business Days prior prepay the portion of the Note equal to the Payment Date on which the Property applicable Release shall be made, a release (or assignment) Price of the lien of the Mortgage Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, being released (and related Loan Documents) for such Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate in the jurisdiction in which the Individual Property is located and that contains standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Release, together with a certificate from an officer of Borrower certifying that such documentation all (i) is in compliance with all Legal Requirements, accrued and (ii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties subject to the Loan Documents not being released);
(d) After giving effect to such Property Release, the Debt Service Coverage Ratio for the Properties then remaining subject to the lien of the Mortgage shall be equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently with the payment of the Release Amount, New Mezzanine Borrower, if any, shall make a partial prepayment of the related New Mezzanine Loan, if any, equal to the related release amount (as defined in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, unpaid interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Release;
(g) All reasonable costs and expenses incurred by Lender in connection with such Property Release shall be paid by Borrower. Any assignments made by Lender shall be without recourse, representation or warranty by Lender and shall comply with all applicable law;
(h) the Allocated Loan Amount for the applicable Individual Property, when combined with the Allocated Loan Amount attributable to the other Individual Properties that have been released pursuant to this Section 2.05, shall not represent more than (x) 15% of the original principal amount of the Loan in any given twelve (12) consecutive month period, and (y) in the aggregate, 40% of the original principal amount of the Loan over the entire term of the Loan;
(i) Borrower shall have provided evidence reasonably acceptable to Lender, that it has terminated the applicable Operating Lease with respect to such Individual Property in accordance with the terms of such Operating Lease including, without limitation, the payment by Borrower to the applicable Tenant of any compensation owing by Borrower to such Tenant under such Operating Lease with respect to the Individual Property being released.amount
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Property Releases. After From time to time after the Prepayment Lockout Period and provided no Event of Default existsExpiration Date but prior to the Maturity Date, Borrower may obtain request, upon not less than thirty (30) days prior written notice to the release of an Individual Administrative Agent or such shorter period as may be acceptable to Administrative Agent, that any Non-Key Property (but not any Key Property) be released from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) of Collateral Pool and from the Mortgage thereon (Liens created by the Security Instrument and the related other Loan Documents) and the , which release of the Borrower’s obligations under the Loan Documents with respect to such Individual Property (other than those expressly stated to survive) (each such release or assignment a “Property Release”), upon the satisfaction of each ) shall be effected by a written release executed by Administrative Agent when all of the following conditions in a manner satisfactory to a prudent mortgage lenderare satisfied as of the date of such Property Release:
(a) Borrower shall pay the Release Amount for the applicable Individual Property, and such payment shall be deemed a voluntary prepayment of a portion of No Default or Potential Default exists under the Loan for all purposes hereunderDocuments, or will exist immediately after giving effect to such Property Release;
(b) Such Property Release shall be in connection with the refinancing of such Non-Key Property, or the sale of such Non-Key Property, to a Person that is not an Affiliate of any Borrower or Guarantor, or such Non-Key Property shall pay be contributed to Lender any applicable Prepayment Premium plus, without duplication, interest on such prepaid amount a joint venture or other entity Controlled by Borrower or Guarantor for the purpose of the Loan through the end redevelopment of the Interest Period in which such payment or prepayment occursNon-Key Property;
(c) Borrower Administrative Agent shall submit to Lenderhave received, not less than seven (7) Business Days prior to for the Payment Date on which account of the applicable Lenders, the Release Price for the Property to be released, which Release Price shall be made, applied as a release (or assignment) reduction of the lien outstanding principal balance of the Mortgage Term Loan;
(d) Administrative Agent shall have received any and related all sums then due and owing under the Loan Documents) for such Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate in the jurisdiction in which the Individual Property is located and that contains standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower Documents in connection with the such Property Release, together with including the applicable Prepayment Premium due on account of such Property Release, and all closing and recording costs, the costs of preparing and delivering such Property Release and the cost of any title insurance endorsements required by Administrative Agent, including, without limitation, an endorsement pursuant to applicable title insurance rules and regulations;
(e) If the Non-Key Property to be released is only a certificate from an officer portion of Borrower certifying that such documentation larger parcel or tract of land, then: (i) is the Non-Key Property to be released and the portion of the Property which shall remain encumbered by the applicable Security Instrument shall each be legal parcels lawfully created in compliance with all Legal Requirementssubdivision laws and ordinances and, at Borrower’s sole cost, and Administrative Agent shall have received any title insurance endorsements or other evidence to that effect requested by Administrative Agent, in form satisfactory to Administrative Agent; (ii) will the legal descriptions of the portion of the Property being released and the portion of the Property remaining encumbered shall be acceptable to Administrative Agent in its sole discretion and (iii) the portion of the Property which shall remain encumbered by the applicable Security Instrument shall have the benefit of all utilities, easements, public and/or private streets, covenants, conditions and restrictions as may be necessary, in Administrative Agent’s judgment, for the development, improvement and operation thereof; provided, that Administrative Agent shall exercise such judgment in a reasonable manner so long as any such release shall not impair result in a material adverse effect on the remaining portion of the Property not so released;
(f) If the Non-Key Property to be released is only a portion of larger parcel or otherwise adversely tract of land for real estate tax purposes (i.e., the Non-Key Property being released is only a portion of a larger tax parcel), Administrative Agent shall have received evidence satisfactory to Administrative Agent that any tax or assessment which constitutes a Lien against the Non-Key Property has been properly allocated between the Non-Key Property to be released and the portion of the Property which shall remain encumbered by the Security Instrument;
(g) No Property Release shall result in any of the remaining Property in the Collateral Pool after the Property Release not (i) having sufficient access to a public right-of-way for ingress and egress to such remaining Property or (ii) being in non-compliance with any Requirements of Law as a result of such Property Release, including without limitation, any parking requirements applicable to the Property remaining in the Collateral Pool;
(h) Neither the acceptance of any payment of a Release Price nor the issuance of any Property Release by Administrative Agent shall affect the Liens, security interests and other rights of Lender Borrower’s obligation to repay all amounts owing under the Loan Documents or under the Lien of the Security Instrument on the remainder of the Property which is not being released or assigned (or released; provided, however, if a Property Release obtained in accordance with this Agreement results in one of the entities other than Xxxx Parent comprising Borrower no longer having any interest in the Collateral Pool, Administrative Agent and Lenders shall take such actions as may reasonably be required to the parties to release such entity from any liability accruing under the Loan Documents from and Properties subject to after the Loan Documents not being released)date of such release;
(di) To the extent a metes and bounds description of the Non-Key Property is not attached hereto as Exhibits A-1 through A-28, Borrower shall have provided Administrative Agent with a metes and bounds description and survey of such Non-Key Property in order to effectuate such release;
(j) After giving effect to such Property Release, the Debt Service Coverage Ratio for Collateral Pool shall comply with the Properties then remaining subject to the lien Portfolio Diversification provisions of the Mortgage shall be equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;Section 2.8; and
(ek) Concurrently with the payment of the Release Amount, New Mezzanine Borrower, if any, shall make a partial prepayment of the related New Mezzanine Loan, if any, equal to the related release amount (as defined in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Release;
(g) All reasonable costs and expenses incurred by Lender in connection with such No Property Release shall be paid by Borrower. Any assignments made by Lender shall be without recourseof the Columbia Corporate Center 10/20/30 Parking Deck, representation the Columbia Corporate Center 40 Parking Deck or warranty by Lender and shall comply with all applicable law;the Columbia Corporate Center 50/60/70 Parking Deck except as follows:
(h1) To the Allocated Loan Amount for the applicable Individual Propertyextent Borrower has effectuated a Property Release of Columbia Xxxxxxxxx Xxxxxx 00, when combined with the Allocated Loan Amount attributable to the other Individual Properties that have been released pursuant to this Section 2.05, shall not represent more than (x) 15% of the original principal amount of the Loan in any given twelve (12) consecutive month period, Xxxxxxxx Corporate Center 20 and (y) in the aggregate, 40% of the original principal amount of the Loan over the entire term of the Loan;
(i) Borrower shall have provided evidence reasonably acceptable to Lender, that it has terminated the applicable Operating Lease with respect to such Individual Property Columbia Corporate Center 30 in accordance with the terms and conditions of this Agreement, then the Columbia Corporate Center 10/20/30 Parking Deck shall be released at such Operating Lease including, without limitation, time as the payment by Borrower to last of the applicable Tenant of any compensation owing by Borrower to such Tenant under such Operating Lease with respect to the Individual Property being foregoing three properties is released.
(2) To the extent Borrower has effectuated a Property Release of Columbia Corporate Center 40, then the Columbia Corporate Center 40 Parking Deck shall be released in connection with such release.
(3) To the extent Borrower has effectuated a Property Release of Columbia Xxxxxxxxx Xxxxxx 00, Xxxxxxxx Corporate Center 60 and Columbia Corporate Center 70 in accordance with the terms and conditions of this Agreement, then the Columbia Corporate Center 50/60/70 Parking Deck shall be released at such time as the last of the foregoing three properties is released.
Appears in 1 contract
Samples: Loan Agreement (Howard Hughes Corp)
Property Releases. After the Lockout Period and provided no Event of Default exists, Mortgage Borrower may obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) Lien of the Mortgage thereon (and the related Mortgage Loan Documents) pursuant to Section 2.9 of the Mortgage Loan Agreement, and Borrower shall have the right to obtain the release of the Borrower’s obligations under portion of the Loan Documents with respect Collateral related to such Individual Property being released (other than those expressly stated to survive) (each such release or assignment a “Property Release”), upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lenderconditions:
(a) Borrower No Event of Default shall pay then exist (other than a non-monetary Event of Default that is specific to the Release Amount for Individual Property being released pursuant to this Section 2.9 and which non-monetary Event of Default would be cured as a result of the release of the applicable Individual Property);
(b) The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates, and such payment prepayment shall be deemed a voluntary prepayment of a portion of the Loan for all purposes hereunder;
(bc) Borrower shall pay provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to obtain a release of the Collateral related to the Individual Property (the “Release Date”) (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lender any applicable Prepayment Premium plus, without duplication, provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates (together with all (i) accrued and unpaid interest on such prepaid the principal amount being prepaid, (ii) Breakage Costs, if applicable, (iii) Compensating Interest, if applicable and (iv) the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan through the end Amount of the Interest Period in which such payment or prepayment occursIndividual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(ce) Borrower shall submit to Lender, not less than seven ten (710) Business Days prior to the Payment Date on which the Property Release shall be madeDate, a release (or assignment) of the lien of the Mortgage Lien (and related Loan Documents) for such the portion of the Collateral related to the Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate in the jurisdiction in which the Individual Property is located satisfactory to a prudent institutional lender and that contains shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Releasesuch release, together with a certificate from an officer of Borrower certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender, effect such releases in accordance with the terms of this Agreement, and (iiiii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties the Collateral subject to the Loan Documents not being released). Lender shall deliver such executed release of Lien for the portion of the Collateral related to such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Release Date;
(df) After giving effect to such Property Releaserelease, Lender shall have determined that the Debt Service Coverage Ratio Yield for the Properties then remaining subject to the lien Liens of the Mortgage Mortgages shall be at least equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or 9.56% and (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently with the payment Yield for all of the Release Amountthen remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of the Individual Property, New Mezzanine Borrower, if any, provided that Borrower shall be permitted to make a partial prepayment of the related New Mezzanine Loan, if any, equal to Loan in accordance with the related release amount (as defined terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Releasethis Section;
(g) All reasonable Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and expenses expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred by Lender in connection with such the release of the portion of the Collateral related to the Individual Property Release from the lien of the related Pledge Agreement and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be paid by Borrower. Any assignments made by Lender shall be without recourserequired to pay any consent, representation processing, administrative or warranty by Lender and shall comply similar fee in connection with all applicable lawany prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Mortgage Borrower has complied with all of the Allocated terms and conditions set forth in the Mortgage Loan Amount for Agreement with respect to a release of the applicable Individual Property, when combined with the Allocated Loan Amount attributable security interest corresponding to the other Individual Properties that have been released release requested pursuant to this Section 2.05, shall not represent more than (x) 15% of the original principal amount of the Loan in any given twelve (12) consecutive month period, and (yii) in the aggregate, 40% of the original principal amount of the Loan over the entire term of the Loan;Mortgage Lender has delivered (or is simultaneously delivering) such release to Mortgage Borrower (if applicable); and
(i) Borrower shall have provided delivered evidence reasonably acceptable satisfactory to Lender, Lender that it (i) Junior Mezzanine Borrower has terminated complied with all of the applicable Operating Lease terms and conditions set forth in the Junior Mezzanine Loan Agreement with respect to a release of the security interest (if applicable) corresponding to the release requested pursuant to this Section and (ii) Junior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Junior Mezzanine Borrower (if applicable). Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of the portion of the Collateral related to an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property in accordance to be released together with the terms Allocated Loan Amounts of such Operating Lease including, without limitation, all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the payment by Borrower to original principal balance of the applicable Tenant of any compensation owing by Borrower to such Tenant under such Operating Lease with respect to Loan (the Individual Property being released“Free Prepayment Amount”).
Appears in 1 contract
Samples: Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Property Releases. After the Lockout Period and provided no Event of Default exists, Mortgage Borrower may obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) Lien of the Mortgage thereon (and the related Mortgage Loan Documents) pursuant to Section 2.9 of the Mortgage Loan Agreement, and Senior Mezzanine Borrower may obtain the release of a portion of the Borrower’s obligations under the Loan Documents with respect Senior Mezzanine Collateral related to such Individual Property (other than those expressly stated to survive) (each such release or assignment a “Property Release”)pursuant to Section 2.9 of the Senior Mezzanine Loan Agreement, upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lenderconditions:
(a) Borrower No Event of Default shall pay then exist (other than a non-monetary Event of Default that is specific to the Release Amount for Individual Property being released pursuant to this Section 2.9 and which non-monetary Event of Default would be cured as a result of the release of the applicable Individual Property);
(i) The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates, and such payment prepayment shall be deemed a voluntary prepayment for all purposes hereunder, and (ii) the amount of a the outstanding principal balance of the Senior Mezzanine Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Loan Senior Mezzanine Collateral relates, and such prepayment shall be deemed a voluntary prepayment for all purposes hereunder;
(bc) Borrower shall pay provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to obtain a release of the Collateral related to the Individual Property (the “Release Date”) (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lender any applicable Prepayment Premium plus, without duplication, provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates (together with all (i) accrued and unpaid interest on such prepaid the principal amount being prepaid, (ii) Breakage Costs, if applicable, (iii) Compensating Interest, if applicable and (iv) the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan through the end Amount of the Interest Period in which such payment or prepayment occursIndividual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(ce) Borrower shall submit to Lender, not less than seven ten (710) Business Days prior to the Payment Date on which the Property Release shall be madeDate, a release (or assignment) of the lien of the Mortgage Lien (and related Loan Documents) for such the portion of the Collateral related to the Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate in the jurisdiction in which the Individual Property is located satisfactory to a prudent institutional lender and that contains shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Releasesuch release, together with a certificate from an officer of Borrower certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender, effect such releases in accordance with the terms of this Agreement, and (iiiii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties the Collateral subject to the Loan Documents not being released). Lender shall deliver such executed release of Lien for the portion of the Collateral related to such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Release Date;
(df) After giving effect to such Property Releaserelease, Lender shall have determined that the Debt Service Coverage Ratio Yield for the Properties then remaining subject to the lien Liens of the Mortgage Mortgages shall be at least equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or 9.50% and (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently with the payment Yield for all of the Release Amountthen remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of the Individual Property, New Mezzanine Borrower, if any, provided that Borrower shall be permitted to make a partial prepayment of the related New Mezzanine Loan, if any, equal to Loan in accordance with the related release amount (as defined terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Releasethis Section;
(g) All reasonable Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and expenses expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred by Lender in connection with such the release of the portion of the Collateral related to the Individual Property Release from the lien of the related Pledge Agreement and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be paid by Borrower. Any assignments made by Lender shall be without recourserequired to pay any consent, representation processing, administrative or warranty by Lender and shall comply similar fee in connection with all applicable lawany prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Mortgage Borrower has complied with all of the Allocated terms and conditions set forth in the Mortgage Loan Amount for Agreement with respect to a release of the applicable Individual Property, when combined with the Allocated Loan Amount attributable security interest corresponding to the other Individual Properties that have been released release requested pursuant to this Section 2.05, shall not represent more than (x) 15% of the original principal amount of the Loan in any given twelve (12) consecutive month period, and (yii) in the aggregate, 40% of the original principal amount of the Loan over the entire term of the Loan;Mortgage Lender has delivered (or is simultaneously delivering) such release to Mortgage Borrower (if applicable); and
(i) Borrower shall have provided delivered evidence reasonably acceptable satisfactory to Lender, Lender that it (i) Senior Mezzanine Borrower has terminated complied with all of the applicable Operating Lease terms and conditions set forth in the Senior Mezzanine Loan Agreement with respect to a release of the security interest (if applicable) corresponding to the release requested pursuant to this Section and (ii) Senior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Senior Mezzanine Borrower (if applicable). Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of the portion of the Collateral related to an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property in accordance to be released together with the terms Allocated Loan Amounts of such Operating Lease including, without limitation, all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the payment by Borrower to original principal balance of the applicable Tenant of any compensation owing by Borrower to such Tenant under such Operating Lease with respect to Loan (the Individual Property being released“Free Prepayment Amount”).
Appears in 1 contract
Samples: Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Property Releases. After the Lockout Period and provided no Event of Default exists, Borrower may obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) Lien of the Mortgage thereon (and the related Loan Documents) and the release of the Borrower’s obligations under the Loan Documents with respect to such Individual Property (other than those expressly stated to survive) (each such release or assignment a “Property Release”), upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lenderconditions:
(a) Borrower No Event of Default shall pay then exist (other than a non-monetary Event of Default that is specific to the Individual Property being released pursuant to this Section 2.9 and which non-monetary Event of Default would be cured as a result of the release of the applicable Individual Property);
(b) The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Amount Price for the applicable Individual Property, and such payment prepayment shall be deemed a voluntary prepayment of a portion of the Loan for all purposes hereunder;
(bc) Borrower shall pay provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to obtain a release of the Individual Property (the “Release Date”) (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lender any applicable Prepayment Premium plus, without duplication, provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property being released (together with all (i) accrued and unpaid interest on such prepaid the principal amount being prepaid, (ii) Breakage Costs, if applicable, (iii) Compensating Interest, if applicable and (iv) the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan through the end Amount of the Interest Period in which such payment or prepayment occursIndividual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(ce) Borrower shall submit to Lender, not less than seven ten (710) Business Days prior to the Payment Date on which the Property Release shall be madeDate, a release (or assignment) of the lien of the Mortgage Lien (and related Loan Documents) for such Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate in the jurisdiction each State in which the Individual Property is located and that contains would be satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Releasesuch release, together with a certificate from an officer of Borrower certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender and recordation thereof, effect such releases in accordance with the terms of this Agreement, and (iiiii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties subject to the Loan Documents not being released). Lender shall deliver such executed release of Lien for such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Release Date;
(df) After giving effect to such Property Releaserelease, Lender shall have determined that the Debt Service Coverage Ratio Yield for the Properties then remaining subject to the lien Liens of the Mortgage Mortgages shall be at least equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or 10.53% and (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently with the payment Yield for all of the Release Amount, New Mezzanine Borrower, if any, shall make a partial prepayment of then remaining Properties (including the related New Mezzanine Loan, if any, equal to the related release amount (as defined in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Release;
(greleased) All reasonable costs and expenses incurred by Lender in connection with such Property Release shall be paid by Borrower. Any assignments made by Lender shall be without recourse, representation or warranty by Lender and shall comply with all applicable law;
(h) the Allocated Loan Amount for the applicable Individual Property, when combined with the Allocated Loan Amount attributable to the other Individual Properties that have been released pursuant to this Section 2.05, shall not represent more than (x) 15% of the original principal amount of the Loan in any given twelve (12) consecutive month period, and (y) in full calendar months immediately preceding the aggregate, 40% release of the original principal amount Individual Property, provided that Borrower shall be permitted to make a prepayment of the Loan over the entire term of the Loan;
(i) Borrower shall have provided evidence reasonably acceptable to Lender, that it has terminated the applicable Operating Lease with respect to such Individual Property in accordance with the terms of such Operating Lease includingSection 2.6 for the purpose of satisfying the Debt Yield requirement in this Section;
(g) Lender shall have received payment of all Lender’s reasonable, without limitationout-of-pocket costs and expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the payment by release of the Individual Property from the lien of the related Mortgage Instrument and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be required to pay any consent, processing, administrative or similar fee in connection with any prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Senior Mezzanine Borrower has complied with all of the applicable Tenant of any compensation owing by Borrower to such Tenant under such Operating Lease terms and conditions set forth in the Senior Mezzanine Loan Agreement with respect to a release of the security interest corresponding to the release requested pursuant to this Section and (ii) Senior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Senior Mezzanine Borrower if applicable; and
(i) [Intentionally Omitted]. Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, (a) on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of an Individual Property being releasedpursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property to be released together with the Allocated Loan Amounts of all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the original principal balance of the Loan (the “Free Prepayment Amount”); and (b) if the Loan is included in a REMIC Trust and the LTV Ratio exceeds or would exceed one hundred twenty five percent (125%) immediately after the release of the applicable Individual Property (such value to be determined, in Lender’s sole discretion, by any commercially reasonable method permitted to a REMIC Trust, based solely on the value of the real property excluding personal property and going concern value, if any; provided that Lender shall not require a re-appraisal or a broker’s opinion of value of the Properties if another commercially reasonable method of valuation of the real property permitted to a REMIC Trust is available to Lender at such time including an internally generated valuation), no release will be permitted unless (i) the principal balance of the Loan is prepaid by an amount not less than the greater of (A) the Release Price for the applicable Individual Property or (B) the least of one (1) of the following amounts: (I) only if the released Individual Property is sold, the net proceeds of an arm’s length sale of the released Individual Property, to an unaffiliated Person, (II) the fair market value of the released Individual Property, at the time of the release, or (III) an amount such that the LTV Ratio immediately after the release of the applicable Individual Property is not greater than the LTV Ratio of the Properties immediately prior to such release, or (ii) Lender receives an opinion of counsel that the Securitization will not fail to maintain its status as a REMIC Trust as a result of the release.
Appears in 1 contract
Property Releases. After (a) On or after the Lockout Period and Period, provided no Event of Default exists(other than an Event of Default that would be cured by the release of the applicable Permitted Release Parcel), is then continuing and all amounts then due and owing to Lender have been paid in full, Borrower may shall have the right, at its option, on not less than 30 days’ prior written notice to Lender, to obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) of the Mortgage thereon (and Permitted Release Parcels from the related Liens of the Loan Documents, provided that the following conditions shall have been satisfied:
(i) such release shall be in connection with in connection with an arms’-length sale of one or more Permitted Release Parcels to a Person that is not an affiliate of Borrower;
(ii) Borrower shall Defease the Loan, in accordance with Section 2.1, in an amount equal to the Release Price applicable to such Permitted Release Parcels;
(iii) DSCR for the Test Period then most recently ended, recalculated to include only income and expense attributable to the Properties remaining after the contemplated release and to exclude the interest expense on the aggregate amount Defeased, shall be no less than the DSCR Threshold; and provided further;
(iv) after giving effect to the release of the Borrower’s obligations under Property or Properties, the Lender 80% Determination shall have been satisfied;
(v) if the Loan Documents with respect has been Securitized, Borrower shall deliver to such Individual Property (other than those expressly stated to survive) (each such release or assignment a “Property Release”), upon the satisfaction Lender an opinion of each of the following conditions counsel in a manner satisfactory form and substance which would be acceptable to a prudent lender of securitized commercial mortgage lender:
(a) Borrower shall pay the Release Amount for the applicable Individual Propertyloans acting reasonably, and such payment shall be deemed stating, among other things, that any REMIC Trust formed pursuant to a voluntary prepayment of a portion of the Loan for all purposes hereunder;
(b) Borrower shall pay to Lender any applicable Prepayment Premium plus, without duplication, interest on such prepaid amount of the Loan through the end of the Interest Period in which such payment or prepayment occurs;
(c) Borrower shall submit to Lender, not less than seven (7) Business Days prior to the Payment Date on which the Property Release shall be made, a release (or assignment) of the lien of the Mortgage (and related Loan Documents) for such Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate in the jurisdiction in which the Individual Property is located and that contains standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Release, together with a certificate from an officer of Borrower certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) Securitization will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or fail to maintain its status as to the parties to the Loan Documents and Properties subject to the Loan Documents not being released);
(d) After giving effect to such Property Release, the Debt Service Coverage Ratio for the Properties then remaining subject to the lien of the Mortgage shall be equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently with the payment of the Release Amount, New Mezzanine Borrower, if any, shall make a partial prepayment of the related New Mezzanine Loan, if any, equal to the related release amount (as defined in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender REMIC as a result of the Property Releasesuch release and will not be subject to tax on any “prohibited transactions” or “prohibited contributions” as a result of such release;
(gvi) All reasonable Borrower shall reimburse Lender for any actual out-of-pocket costs and expenses incurred by Lender in connection with such Property Release shall be paid by Borrower. Any assignments made by Lender shall be without recourse, representation or warranty by Lender this Section 2.2 (including the reasonable fees and shall comply with all applicable lawexpenses of legal counsel and the reasonable out-of-pocket expenses of the Servicer);
(hvii) the Allocated Loan Amount for the applicable Individual Property, when combined with the Allocated Loan Amount attributable a Form T-38 endorsement to the other Individual Properties that have been released pursuant to this Section 2.05, shall not represent more than (x) 15% Title Insurance Policies addressing the release of the original principal amount of the Loan in any given twelve (12) consecutive month period, and (y) in the aggregate, 40% of the original principal amount of the Loan over the entire term of the LoanProperties;
(iviii) Borrower shall have provided if reasonably requested by Lender, an updated survey of the Property that does not include the Permitted Release Parcel;
(ix) reasonably satisfactory evidence that (1) such Permitted Release Parcel has been legally subdivided from the remainder of the Properties or otherwise constitutes a separate legal parcel in compliance with Legal Requirements; (2) after giving effect to such release, each of the Permitted Release Parcel and the balance of the Properties conforms to and is in compliance in all material respects with applicable Legal Requirements; (3) after giving effect to such release, each of the Permitted Release Parcel and the balance of the Properties constitute separate tax lots; and (4) the Permitted Release Parcel is not necessary for the Property to comply with any zoning, building, land use or parking or other Legal Requirements applicable to the Property or for the then current use of the Property, including without limitation for access, driveways, parking, utilities or drainage or, to the extent that such Permitted Release Parcel is necessary for any such purpose, a reciprocal easement agreement or other agreement reasonably acceptable to Lender has been executed and recorded or any reciprocal easement agreement in place at Closing has been amended and recorded, in each case, that would allow the owners of the Properties to continue to use the Permitted Release Parcel to the extent necessary for such purpose, in which case Lender shall, at Borrower’s sole cost and expense, reasonably cooperate by executing customarily required mortgage consents, reasonably acceptable to Lender;
(x) reasonably satisfactory evidence that Borrower has complied with any requirements applicable to the release in the Leases, reciprocal easement agreements, operating agreements, parking agreements or other similar agreements affecting the Property and such release shall not violate any of the provisions of any such documents in any respect that it has terminated would result in a termination (or give any other party thereto the right to terminate), extinguishment or other loss of material rights of Borrower or in a material increase in Borrower’s obligations under such documents;
(b) Upon satisfaction of the requirements set forth in this Section 2.2, Lender will execute and deliver to Borrower such instruments, prepared by Borrower and reasonably approved by Lender, as shall be necessary to release the applicable Operating Lease with respect Property from the Liens of the Loan Documents, and to release the applicable Borrower from all further liabilities and obligations under the Loan Documents (other than those expressly provided to survive repayment). Thereafter the “Borrower” hereunder shall exclude the Borrower that owned the released Permitted Release Parcel so long as such Individual Borrower does not own any other Property in accordance with that is subject to the terms Liens of such Operating Lease including, without limitation, the payment by Borrower Loan. Any rents or other income from the released Permitted Release Parcel that is thereafter inadvertently paid or deposited into the Lockbox Account or the Cash Management Account shall be promptly released to the applicable Tenant of any compensation owing by Borrower to such Tenant under such Operating Lease with respect to the Individual Property being releasedBorrower.
Appears in 1 contract
Samples: Loan Agreement (Parkway, Inc.)
Property Releases. After the Lockout Period and provided no Event of Default exists, Mortgage Borrower may obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) Lien of the Mortgage thereon (and the related Mortgage Loan Documents) pursuant to Section 2.9 of the Mortgage Loan Agreement, and Senior Mezzanine Borrower may obtain the release of a portion of the Borrower’s obligations under the Loan Documents with respect Senior Mezzanine Collateral related to such Individual Property (other than those expressly stated to survive) (each such release or assignment a “Property Release”)pursuant to Section 2.9 of the Senior Mezzanine Loan Agreement, upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lenderconditions:
(a) Borrower No Event of Default shall pay then exist (other than a non-monetary Event of Default that is specific to the Release Amount for Individual Property being released pursuant to this Section 2.9 and which non-monetary Event of Default would be cured as a result of the release of the applicable Individual Property);
(i) The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates, and such payment prepayment shall be deemed a voluntary prepayment for all purposes hereunder, and (ii) the amount of a the outstanding principal balance of the Senior Mezzanine Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Loan Senior Mezzanine Collateral relates, and such prepayment shall be deemed a voluntary prepayment for all purposes hereunder;
(bc) Borrower shall pay provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to obtain a release of the Collateral related to the Individual Property (the “Release Date”) (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lender any applicable Prepayment Premium plus, without duplication, provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates (together with all (i) accrued and unpaid interest on such prepaid the principal amount being prepaid, (ii) Breakage Costs, if applicable, (iii) Compensating Interest, if applicable and (iv) the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan through the end Amount of the Interest Period in which such payment or prepayment occursIndividual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(ce) Borrower shall submit to Lender, not less than seven ten (710) Business Days prior to the Payment Date on which the Property Release shall be madeDate, a release (or assignment) of the lien of the Mortgage Lien (and related Loan Documents) for such the portion of the Collateral related to the Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate in the jurisdiction in which the Individual Property is located satisfactory to a prudent institutional lender and that contains shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Releasesuch release, together with a certificate from an officer of Borrower certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender, effect such releases in accordance with the terms of this Agreement, and (iiiii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties the Collateral subject to the Loan Documents not being released). Lender shall deliver such executed release of Lien for the portion of the Collateral related to such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Release Date;
(df) After giving effect to such Property Releaserelease, Lender shall have determined that the Debt Service Coverage Ratio Yield for the Properties then remaining subject to the lien Liens of the Mortgage Mortgages shall be at least equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or 10.15% and (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently with the payment Yield for all of the Release Amountthen remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of the Individual Property, New Mezzanine Borrower, if any, provided that Borrower shall be permitted to make a partial prepayment of the related New Mezzanine Loan, if any, equal to Loan in accordance with the related release amount (as defined terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Releasethis Section;
(g) All reasonable Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and expenses expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred by Lender in connection with such the release of the portion of the Collateral related to the Individual Property Release from the lien of the related Pledge Agreement and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be paid by Borrower. Any assignments made by Lender shall be without recourserequired to pay any consent, representation processing, administrative or warranty by Lender and shall comply similar fee in connection with all applicable lawany prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Mortgage Borrower has complied with all of the Allocated terms and conditions set forth in the Mortgage Loan Amount for Agreement with respect to a release of the applicable Individual Property, when combined with the Allocated Loan Amount attributable security interest corresponding to the other Individual Properties that have been released release requested pursuant to this Section 2.05, shall not represent more than (x) 15% of the original principal amount of the Loan in any given twelve (12) consecutive month period, and (yii) in the aggregate, 40% of the original principal amount of the Loan over the entire term of the Loan;Mortgage Lender has delivered (or is simultaneously delivering) such release to Mortgage Borrower (if applicable); and
(i) Borrower shall have provided delivered evidence reasonably acceptable satisfactory to Lender, Lender that it (i) Senior Mezzanine Borrower has terminated complied with all of the applicable Operating Lease terms and conditions set forth in the Senior Mezzanine Loan Agreement with respect to a release of the security interest (if applicable) corresponding to the release requested pursuant to this Section and (ii) Senior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Senior Mezzanine Borrower (if applicable). Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of the portion of the Collateral related to an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property in accordance to be released together with the terms Allocated Loan Amounts of such Operating Lease including, without limitation, all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the payment by Borrower to original principal balance of the applicable Tenant of any compensation owing by Borrower to such Tenant under such Operating Lease with respect to Loan (the Individual Property being released“Free Prepayment Amount”).
Appears in 1 contract
Samples: Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Property Releases. After the Lockout Period and provided Provided that no Event of Default existsshall then exist, Borrower may and may cause Mortgage Borrower to (w) obtain the release of all or any of the Select Release Properties in connection with a Select Release, (x) obtain the release of all or any of the Prime ROFO Release Properties in connection with a Prime ROFO Release or (y) obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) Lien of the Mortgage thereon (and the related Mortgage Loan Documents) and (such release, a “Property Release”) and, in each case, obtain the release of the applicable Borrower’s obligations under the Loan Documents with respect to such Individual Property (other than those expressly stated to survive) with respect to the Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, then being released and, only to the extent such Mortgage Borrower no longer owns any Property, obtain the release of the Collateral related to such Mortgage Borrower (each such release obligations or assignment a Collateral being released in accordance with the foregoing, the “Property ReleaseReleased Collateral”), upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lenderconditions:
(a) Borrower The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall pay equal or exceed the applicable Release Amount Price for the applicable Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, being released and such payment prepayment shall be deemed a voluntary prepayment of a portion of the Loan for all purposes hereunder;
(b) Borrower shall pay provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of (A) Mortgage Borrower’s request to Lender obtain (i) a release of an Individual Property in connection with a Property Release or a Prime ROFO Release or (ii) to the extent Mortgage Borrower has not yet elected to release all or any applicable Prepayment Premium plus, without duplication, interest on such prepaid amount of the Loan through the end Select Release Properties pursuant to a Select Release, a release of all or any of the Interest Period Select Release Properties in connection with a Select Release and (B) its request to obtain the release, if applicable, of the related Released Collateral (the “Release Date”), which notice shall specify the Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, that are the subject of such payment release and whether such release constitutes a Select Release or prepayment occurs;
a Prime ROFO Release (c) such notice being revocable or may be modified by Borrower shall submit to Lender, not less than seven on at least two (72) Business Days prior to the Payment Date on which the Property Release shall be made, a release (or assignment) of the lien of the Mortgage (and related Loan Documents) for such Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate in the jurisdiction in which the Individual Property is located and that contains standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Release, together with a certificate from an officer of Borrower certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties subject to the Loan Documents not being released);
(d) After giving effect to such Property Release, the Debt Service Coverage Ratio for the Properties then remaining subject to the lien of the Mortgage shall be equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently with the payment of the Release Amount, New Mezzanine Borrower, if any, shall make a partial prepayment of the related New Mezzanine Loan, if any, equal to the related release amount (as defined in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver written notice to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result provided Borrower pays all of the Property Release;
(g) All Lender’s reasonable costs and expenses incurred by Lender in connection with such Property Release shall be paid by the notice of intended release). For the avoidance of doubt, Mortgage Borrower. Any assignments made by Lender shall be without recourse, representation ’s right to release all or warranty by Lender and shall comply with all applicable law;
(h) the Allocated Loan Amount for the applicable Individual Property, when combined with the Allocated Loan Amount attributable to the other Individual Properties that have been released pursuant to this Section 2.05, shall not represent more than (x) 15% any of the original principal amount of the Loan Select Release Properties in any given twelve (12) consecutive month period, and (y) in the aggregate, 40% of the original principal amount of the Loan over the entire term of the Loan;
(i) Borrower shall have provided evidence reasonably acceptable to Lender, that it has terminated the applicable Operating Lease connection with respect to such Individual Property in accordance with the terms of such Operating Lease including, without limitation, the payment by Borrower to the applicable Tenant of any compensation owing by Borrower to such Tenant under such Operating Lease with respect to the Individual Property being released.a Select
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Property Releases. After Subject to the Lockout Period terms and conditions set forth herein, Owner shall have the right, from time to time, on any Payment Date (as defined in the Note) to obtain a release (a "Property Release") of a Mortgaged Property from the lien of the related Mortgage (i) provided that no Event of Default existsunder this Agreement, Borrower may obtain the Note, the Mortgage or any other Loan Document has occurred and is continuing and (ii) subject to compliance with the provisions set forth below in this Section 61, legal, record, economic and beneficial ownership of the Mortgaged Property for which a Property Release is being requested (the "Release Premises") is simultaneously with the granting of the Property Release transferred (a "Release Premises Transfer") to and shall be owned immediately after such Property Release by a person(s), party(ies) or entity(ies) other than Owner or any general partner or managing member of Owner or any affiliate of Owner ("Release Premises Transferee"). In the event that the Owner seeks to release of an Individual a Mortgaged Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) of the related Mortgage, Lender shall release such Mortgaged Property from the lien of the related Mortgage thereon (and the related Loan Documents) and the release , but only upon receipt by Lender of the Borrower’s obligations under the Loan Documents with respect to such Individual Property (other than those expressly stated to survive) (each such release or assignment a “Property Release”), upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lenderfollowing:
(a) Borrower shall pay At least thirty (30) days but no more than ninety (90) days prior written notice of Owner's request to obtain a release of the Release Amount for the applicable Individual Property, and such payment shall be deemed a voluntary prepayment of a portion of the Loan for all purposes hereunderPremises;
(b) Borrower A certificate of Owner certifying the requirements set forth in Paragraph 61(h) of this Loan Agreement shall pay be true after giving effect to Lender any applicable Prepayment Premium plus, without duplication, interest on such prepaid amount of the Loan through the end of the Interest Period in which such payment or prepayment occurstransfer;
(c) Borrower shall submit to Lender, not less than seven At least three (73) Business Days Days' prior to the Payment Date on which the such Property Release shall be made, a release (or assignment) an irrevocable notice of prepayment and the lien of the Mortgage (and related Loan Documents) for such Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate Certification from Owner in the jurisdiction in which the Individual Property is located and that contains standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Release, together with a certificate from an officer of Borrower certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or form attached hereto as to the parties to the Loan Documents and Properties subject to the Loan Documents not being released)Exhibit C;
(d) After giving effect Intentionally Omitted;
(e) A wire transfer of immediately available federal funds in an amount equal to such Property Releasethe sum of (i) the Release Price (defined below) and (ii) all accrued and unpaid interest with respect to the Note and any other amounts owing to Lender in connection with the Release Premises pursuant to this Agreement, the Note, the Mortgage or the other Loan Documents, including without limitation, the Breakage Costs, the Exit Fee and the Shortfall Interest Payment (each as defined in the Note);
(f) If applicable, all proposed documents related to the Release Premises Transferee and such documents, certificates and assurances that Lender shall reasonably request to evidence and confirm that the Release Premises is simultaneously with the Property Release being transferred to a Release Premises Transferee;
(g) Payment of all Lender's costs and expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the Property Release and the review and approval of the documents and information required to be delivered in connection therewith ("Property Release Expenses");
(h) Evidence satisfactory to Lender that the Aggregate Debt Service Coverage Ratio for the Properties then remaining subject twelve (12) month period immediately preceding the Property Release with respect to the lien Mortgaged Properties remaining encumbered by the liens of the Mortgage after giving effect to the Property Release shall be equal to or exceed greater than the greater of (i) the Aggregate Debt Service Coverage Ratio as with respect to all of the Closing Date Mortgaged Properties for the twelve (12) months immediately preceding the date hereof (1.42 to 1.00; the "Origination DSCR") or (ii) the Aggregate Debt Service Coverage Ratio with respect to all of the Mortgaged Properties then encumbered by the liens of the Mortgage immediately prior to the Property Release;
(e) Concurrently with the payment of the Release Amount, New Mezzanine Borrower, if any, shall make a partial prepayment of the related New Mezzanine Loan, if any, equal to the related such release amount (as defined in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Release;
(g) All reasonable costs and expenses incurred by Lender in connection with such Property Release shall be paid by Borrower. Any assignments made by Lender shall be without recourse, representation or warranty by Lender and shall comply with all applicable law;
(h) the Allocated Loan Amount for the applicable Individual Property, when combined with the Allocated Loan Amount attributable to the other Individual Properties that have been released pursuant to this Section 2.05, shall not represent more than (x) 15% of the original principal amount of the Loan in any given twelve (12) consecutive months immediately preceding the calendar month period, and (y) in prior to the aggregate, 40% date of the original principal amount of proposed Property Release (the Loan over the entire term of the Loan;"Current DSCR"); and
(i) Borrower If Securities are then rated by the Rating Agencies, the written confirmation of the Rating Agencies that the Property Release shall have provided evidence reasonably acceptable to Lendernot result in a downgrade, that it has terminated withdrawal or qualification of the then current ratings by the applicable Operating Lease with respect Rating Agencies of the Securities and otherwise in form and substance reasonably satisfactory to such Individual Property in accordance with the terms of such Operating Lease including, without limitation, the payment by Borrower to the applicable Tenant of any compensation owing by Borrower to such Tenant under such Operating Lease with respect to the Individual Property being releasedLender and its counsel.
Appears in 1 contract
Samples: Loan Agreement (Lodgian Inc)
Property Releases. After the Lockout Period and provided no Event of Default exists, Borrower may obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) Lien of the Mortgage thereon (and the related Loan Documents) and the release of the Borrower’s obligations under the Loan Documents with respect to such Individual Property (other than those expressly stated to survive) (each such release or assignment a “Property Release”), upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lenderconditions:
(a) Borrower No Event of Default shall pay then exist (other than a non-monetary Event of Default that is specific to the Individual Property being released pursuant to this Section 2.9 and which non-monetary Event of Default would be cured as a result of the release of the applicable Individual Property);
(b) The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Amount Price for the applicable Individual Property, and such payment prepayment shall be deemed a voluntary prepayment of a portion of the Loan for all purposes hereunder;
(bc) Borrower shall pay provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to obtain a release of the Individual Property (the “Release Date”) (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lender any applicable Prepayment Premium plus, without duplication, provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property being released (together with all (i) accrued and unpaid interest on such prepaid the principal amount being prepaid, (ii) Breakage Costs, if applicable, (iii) Compensating Interest, if applicable and (iv) the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan through the end Amount of the Interest Period in which such payment or prepayment occursIndividual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(ce) Borrower shall submit to Lender, not less than seven ten (710) Business Days prior to the Payment Date on which the Property Release shall be madeDate, a release (or assignment) of the lien of the Mortgage Lien (and related Loan Documents) for such Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate in the jurisdiction each State in which the Individual Property is located and that contains would be satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Releasesuch release, together with a certificate from an officer of Borrower certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender and recordation thereof, effect such releases in accordance with the terms of this Agreement, and (iiiii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties subject to the Loan Documents not being released). Lender shall deliver such executed release of Lien for such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Release Date;
(df) After giving effect to such Property Releaserelease, Lender shall have determined that the Debt Service Coverage Ratio Yield for the Properties then remaining subject to the lien Liens of the Mortgage Mortgages shall be at least equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or 9.5% and (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently with the payment Yield for all of the Release Amountthen remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of the Individual Property, New Mezzanine Borrower, if any, provided that Borrower shall be permitted to make a partial prepayment of the related New Mezzanine Loan, if any, equal to Loan in accordance with the related release amount (as defined terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Releasethis Section;
(g) All reasonable Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and expenses expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred by Lender in connection with such the release of the Individual Property Release from the lien of the related Mortgage Instrument and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be paid by Borrower. Any assignments made by Lender shall be without recourserequired to pay any consent, representation processing, administrative or warranty by Lender and shall comply similar fee in connection with all applicable lawany prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Senior Mezzanine Borrower has complied with all of the Allocated terms and conditions set forth in the Senior Mezzanine Loan Amount for Agreement with respect to a release of the applicable Individual Property, when combined with the Allocated Loan Amount attributable security interest corresponding to the other Individual Properties that have been released release requested pursuant to this Section 2.05, shall not represent more than (x) 15% of the original principal amount of the Loan in any given twelve (12) consecutive month period, and (yii) in the aggregate, 40% of the original principal amount of the Loan over the entire term of the Loan;Senior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Senior Mezzanine Borrower if applicable; and
(i) Borrower shall have provided delivered evidence reasonably acceptable satisfactory to Lender, Lender that it (i) Junior Mezzanine Borrower has terminated complied with all of the applicable Operating Lease terms and conditions set forth in the Junior Mezzanine Loan Agreement with respect to a release of the security interest (if applicable) corresponding to the release requested pursuant to this Section and (ii) Junior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Junior Mezzanine Borrower (if applicable). Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, (a) on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property in accordance to be released together with the terms Allocated Loan Amounts of all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the original principal balance of the Loan (the “Free Prepayment Amount”); and (b) if the Loan is included in a REMIC Trust and the LTV Ratio exceeds or would exceed one hundred twenty five percent (125%) immediately after the release of the applicable Individual Property (such Operating Lease includingvalue to be determined, without limitationin Lender’s sole discretion, by any commercially reasonable method permitted to a REMIC Trust, based solely on the value of the real property excluding personal property and going concern value, if any; provided that Lender shall not require a re-appraisal or a broker’s opinion of value of the Properties if another commercially reasonable method of valuation of the real property permitted to a REMIC Trust is available to Lender at such time including an internally generated valuation), no release will be permitted unless (i) the principal balance of the Loan is prepaid by an amount not less than the greater of (A) the Release Price for the applicable Individual Property or (B) the least of one (1) of the following amounts: (I) only if the released Individual Property is sold, the payment by Borrower net proceeds of an arm’s length sale of the released Individual Property, to an unaffiliated Person, (II) the fair market value of the released Individual Property, at the time of the release, or (III) an amount such that the LTV Ratio immediately after the release of the applicable Tenant Individual Property is not greater than the LTV Ratio of any compensation owing by Borrower the Properties immediately prior to such Tenant under such Operating Lease with respect release, or (ii) Lender receives an opinion of counsel that the Securitization will not fail to maintain its status as a REMIC Trust as a result of the Individual Property being releasedrelease.
Appears in 1 contract
Property Releases. After Solely in connection with a release of an Individual Property pursuant to Section 15.1(c)(viii) hereof prior to the Lockout Period and provided no Event earlier of Default existsthe third (3rd) anniversary of the Closing Date or a REMIC Prohibition Period, Borrower may obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) Lien of the Mortgage thereon (and the related Loan Documents) and the release of the Borrower’s obligations under the Loan Documents with respect to such Individual Property (other than those expressly stated to survive) (each such release or assignment a “Property Release”), upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lenderconditions:
(a) Borrower No Event of Default shall pay then exist (other than a non-monetary Event of Default that is specific to the Individual Property being released pursuant to this Section 2.9 and which non-monetary Event of Default would be cured as a result of the release of the applicable Individual Property);
(b) The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Amount Price for the applicable Individual Property, and such payment prepayment shall be deemed a voluntary prepayment of a portion of the Loan for all purposes hereunder;
(bc) Borrower shall pay provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to obtain a release of the Individual Property (the “Prepayment Release Date”) (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lxxxxx provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property being released (together with (a) all accrued and unpaid interest on the principal amount being prepaid and (b) if prepaid on a date other than a Payment Date, the amount of interest which would have accrued thereon if such prepayment was made on the next Payment Date, all additional amounts required to be paid by Borrower and all other amounts owing by Borrower to Lender under the Note, this Agreement and the other Loan Documents; provided, however, Borrower shall not be required to pay any applicable Prepayment Premium plusconsent, without duplicationprocessing, interest on such prepaid administrative or similar fee in connection with any prepayment pursuant to this Section 2.9(d)) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan through the end Amount of the Interest Period in which such payment or prepayment occursIndividual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(ce) Borrower shall submit to Lender, not less than seven ten (710) Business Days prior to the Payment Date on which the Property Prepayment Release shall be madeDate, a release (or assignment) of the lien of the Mortgage Lien (and related Loan Documents) for such Individual Property for execution by LenderLxxxxx. Such release (or assignment) shall be in a form appropriate in the jurisdiction each State in which the Individual Property is located and that contains would be satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Releasesuch release, together with a certificate from an officer of Borrower certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lxxxxx and recordation thereof, effect such releases in accordance with the terms of this Agreement, and (iiiii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties subject to the Loan Documents not being released);. Lender shall deliver such executed release of Lien for such Individual Property to Borrower on or prior to the Prepayment Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Prepayment Release Date; and
(df) After giving effect to such Property Release, the Debt Service Coverage Ratio for the Properties then remaining subject to the lien of the Mortgage Lender shall be equal to or exceed the greater have received payment of (i) the Debt Service Coverage Ratio as of the Closing Date or Yield Maintenance Premium and (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently all of Lender’s reasonable, out-of-pocket costs and expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the payment release of the Release Amount, New Mezzanine Borrower, if any, shall make a partial prepayment Individual Property from the lien of the related New Mezzanine LoanMortgage and the review and approval of the documents and information required to be delivered in connection therewith; provided, if anyhowever, equal Borrower shall not be required to the related release amount (as defined in the applicable New Mezzanine Loan Documents)pay any consent, if anyprocessing, applicable to such Individual Property, together with any related interest, fees, prepayment premiums administrative or other amounts payable under the related New Mezzanine Loan Documents, if any, similar fee in connection with such prepaymentany prepayment pursuant to this Section 2.9, includingexcept for (i) accrued and unpaid interest on the principal amount being prepaid, to the extent such prepayment is made (ii) if prepaid on a date other than a Payment Date, the amount of interest which would have accrued thereon if such prepayment was made on the outstanding next Payment Date, all additional amounts required to be paid by Borrower and all other amounts owing by Borrower to Lender under the Note, this Agreement and the other Loan Documents and (iii) the Yield Maintenance Premium.
(g) Notwithstanding the foregoing provisions of this Section 2.9, for so long as the Loan is included in a REMIC Trust in connection with a Securitization, no release of an Individual Property will be permitted unless, immediately after the release, either (i) the LTV Ratio is equal to or less than one hundred twenty-five percent (125%) (such value to be determined, in Lxxxxx’s sole discretion, by any commercially reasonable method permitted to a REMIC Trust, based solely on the value of the real property excluding personal property and going concern value, if any) or (ii) the principal balance of the related New Mezzanine LoanLoan is paid down by the least of the following amounts: (A) the fair market value of the Individual Property at the time of release, if anyor (B) an amount such that the LTV Ratio (as so determined by Lender) does not increase after the release to greater than one hundred twenty-five percent (125%), pursuant as calculated in accordance with the foregoing clause (c)(i), unless the Lender receives an opinion of counsel that such Securitization will not fail to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender maintain its status as a REMIC Trust as a result of the Property Release;
(g) All reasonable costs and expenses incurred by Lender in connection with such Property Release shall be paid by Borrower. Any assignments made by Lender shall be without recourse, representation or warranty by Lender and shall comply with all applicable law;
(h) the Allocated Loan Amount for the applicable Individual Property, when combined with the Allocated Loan Amount attributable to the other Individual Properties that have been released pursuant to this Section 2.05, shall not represent more than (x) 15% of the original principal amount of the Loan in any given twelve (12) consecutive month period, and (y) in the aggregate, 40% of the original principal amount of the Loan over the entire term of the Loan;
(i) Borrower shall have provided evidence reasonably acceptable to Lender, that it has terminated the applicable Operating Lease with respect to such Individual Property in accordance with the terms of such Operating Lease including, without limitation, the payment by Borrower to the applicable Tenant of any compensation owing by Borrower to such Tenant under such Operating Lease with respect to the Individual Property being releasedrelease.
Appears in 1 contract
Property Releases. After (a) On or after the Lockout Period and Period, provided no Event of Default exists(other than an Event of Default that would be cured by the release of the applicable Permitted Release Parcel), is then continuing and all amounts then due and owing to Lender have been paid in full, Borrower may shall have the right, at its option, on not less than 30 days’ prior written notice to Lender, to obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) of the Mortgage thereon (and Permitted Release Parcels from the related Liens of the Loan Documents, provided that the following conditions shall have been satisfied: (i) such release shall be in connection with in connection with an arms’-length sale of one or more Permitted Release Parcels to a Person that is not an affiliate of Borrower; (ii) Borrower shall Defease the Loan, in accordance with Section 2.1, in an amount equal to the Release Price applicable to such Permitted Release Parcels; (iii) DSCR for the Test Period then most recently ended, recalculated to include only income and expense attributable to the Properties remaining after the contemplated release and to exclude the interest expense on the aggregate amount Defeased, shall be no less than the DSCR Threshold; and provided further; (iv) after giving effect to the release of the Borrower’s obligations under Property or Properties, the Lender 80% Determination shall have been satisfied; (v) if the Loan Documents with respect has been Securitized, Borrower shall deliver to such Individual Property (other than those expressly stated to survive) (each such release or assignment a “Property Release”), upon the satisfaction Lender an opinion of each of the following conditions counsel in a manner satisfactory form and substance which would be acceptable to a prudent lender of securitized commercial mortgage lender:
(a) Borrower shall pay the Release Amount for the applicable Individual Propertyloans acting reasonably, and such payment shall be deemed stating, among other things, that any REMIC Trust formed pursuant to a voluntary prepayment of a portion of the Loan for all purposes hereunder;
(b) Borrower shall pay to Lender any applicable Prepayment Premium plus, without duplication, interest on such prepaid amount of the Loan through the end of the Interest Period in which such payment or prepayment occurs;
(c) Borrower shall submit to Lender, not less than seven (7) Business Days prior to the Payment Date on which the Property Release shall be made, a release (or assignment) of the lien of the Mortgage (and related Loan Documents) for such Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate in the jurisdiction in which the Individual Property is located and that contains standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Release, together with a certificate from an officer of Borrower certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) Securitization will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or fail to maintain its status as to the parties to the Loan Documents and Properties subject to the Loan Documents not being released);
(d) After giving effect to such Property Release, the Debt Service Coverage Ratio for the Properties then remaining subject to the lien of the Mortgage shall be equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently with the payment of the Release Amount, New Mezzanine Borrower, if any, shall make a partial prepayment of the related New Mezzanine Loan, if any, equal to the related release amount (as defined in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender REMIC as a result of the Property Release;
(g) All reasonable costs such release and expenses incurred by Lender in connection with such Property Release shall will not be paid by Borrower. Any assignments made by Lender shall be without recourse, representation subject to tax on any “prohibited transactions” or warranty by Lender and shall comply with all applicable law;
(h) the Allocated Loan Amount for the applicable Individual Property, when combined with the Allocated Loan Amount attributable to the other Individual Properties that have been released pursuant to this Section 2.05, shall not represent more than (x) 15% of the original principal amount of the Loan in any given twelve (12) consecutive month period, and (y) in the aggregate, 40% of the original principal amount of the Loan over the entire term of the Loan;
(i) Borrower shall have provided evidence reasonably acceptable to Lender, that it has terminated the applicable Operating Lease with respect to such Individual Property in accordance with the terms “prohibited contributions” as a result of such Operating Lease including, without limitation, the payment by Borrower to the applicable Tenant of any compensation owing by Borrower to such Tenant under such Operating Lease with respect to the Individual Property being released.release;
Appears in 1 contract
Samples: Loan Agreement (Parkway, Inc.)
Property Releases. After the Lockout Period and provided no Event of Default exists, Mortgage Borrower may obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) Lien of the Mortgage thereon (and the related Mortgage Loan Documents) pursuant to Section 2.9 of the Mortgage Loan Agreement, and Borrower shall have the right to obtain the release of the Borrower’s obligations under portion of the Loan Documents with respect Collateral related to such Individual Property being released (other than those expressly stated to survive) (each such release or assignment a “Property Release”), upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lenderconditions:
(a) Borrower No Event of Default shall pay then exist (other than a non-monetary Event of Default that is specific to the Release Amount for Individual Property being released pursuant to this Section 2.9 and which non-monetary Event of Default would be cured as a result of the release of the applicable Individual Property);
(b) The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates, and such payment prepayment shall be deemed a voluntary prepayment of a portion of the Loan for all purposes hereunder;
(bc) Borrower shall pay provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to obtain a release of the Collateral related to the Individual Property (the “Release Date”) (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lender any applicable Prepayment Premium plus, without duplication, provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates (together with all (i) accrued and unpaid interest on such prepaid the principal amount being prepaid, (ii) Breakage Costs, if applicable, (iii) Compensating Interest, if applicable and (iv) the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan through the end Amount of the Interest Period in which such payment or prepayment occursIndividual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(ce) Borrower shall submit to Lender, not less than seven ten (710) Business Days prior to the Payment Date on which the Property Release shall be madeDate, a release (or assignment) of the lien of the Mortgage Lien (and related Loan Documents) for such the portion of the Collateral related to the Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate in the jurisdiction in which the Individual Property is located satisfactory to a prudent institutional lender and that contains shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Releasesuch release, together with a certificate from an officer of Borrower certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender, effect such releases in accordance with the terms of this Agreement, and (iiiii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties the Collateral subject to the Loan Documents not being released). Lender shall deliver such executed release of Lien for the portion of the Collateral related to such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Release Date;
(df) After giving effect to such Property Releaserelease, Lender shall have determined that the Debt Service Coverage Ratio Yield for the Properties then remaining subject to the lien Liens of the Mortgage Mortgages shall be at least equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or 10.53% and (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently with the payment Yield for all of the Release Amount, New Mezzanine Borrower, if any, shall make a partial prepayment of then remaining Properties (including the related New Mezzanine Loan, if any, equal to the related release amount (as defined in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Release;
(greleased) All reasonable costs and expenses incurred by Lender in connection with such Property Release shall be paid by Borrower. Any assignments made by Lender shall be without recourse, representation or warranty by Lender and shall comply with all applicable law;
(h) the Allocated Loan Amount for the applicable Individual Property, when combined with the Allocated Loan Amount attributable to the other Individual Properties that have been released pursuant to this Section 2.05, shall not represent more than (x) 15% of the original principal amount of the Loan in any given twelve (12) consecutive month period, and (y) in full calendar months immediately preceding the aggregate, 40% release of the original principal amount Individual Property, provided that Borrower shall be permitted to make a prepayment of the Loan over the entire term of the Loan;
(i) Borrower shall have provided evidence reasonably acceptable to Lender, that it has terminated the applicable Operating Lease with respect to such Individual Property in accordance with the terms of such Operating Lease includingSection 2.6 for the purpose of satisfying the Debt Yield requirement in this Section;
(g) Lender shall have received payment of all Lender’s reasonable, without limitationout-of-pocket costs and expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the payment by Borrower to release of the applicable Tenant portion of any compensation owing by Borrower to such Tenant under such Operating Lease with respect the Collateral related to the Individual Property being releasedfrom the lien of the related Pledge Agreement and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be required to pay any consent, processing, administrative or similar fee in connection with any prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Mortgage Borrower has complied with all of the terms and conditions set forth in the Mortgage Loan Agreement with respect to a release of the security interest corresponding to the release requested pursuant to this Section and (ii) Mortgage Lender has delivered (or is simultaneously delivering) such release to Mortgage Borrower (if applicable); and
(i) [Intentionally Omitted]. Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of the portion of the Collateral related to an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property to be released together with the Allocated Loan Amounts of all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the original principal balance of the Loan (the “Free Prepayment Amount”).
Appears in 1 contract
Samples: Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Property Releases. After the Lockout Period and provided (a) Provided no Event of Default existsis then continuing and all Indebtedness then due and owing to Lender has been paid in full, Borrower may shall have the right, at its option, on not less than 30 days’ prior written notice to Lender, to obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) of the Mortgage thereon (and Properties from the related Liens of the Loan Documents) and the release of the Borrower’s obligations under the Loan Documents with respect to such Individual Property (other than those expressly stated to survive) (each such release or assignment a “Property Release”), upon the satisfaction of each of provided that the following conditions in a manner satisfactory to a prudent mortgage lendershall have been satisfied:
(ai) Borrower shall pay prepay the Release Amount for the applicable Individual PropertyLoan, pursuant to, and such payment shall be deemed a voluntary prepayment of a portion of the Loan for all purposes hereunder;
(b) Borrower shall pay to Lender any applicable Prepayment Premium plusin accordance with, without duplicationSection 2.1, interest on such prepaid in an amount of the Loan through the end of the Interest Period in which such payment or prepayment occurs;
(c) Borrower shall submit to Lender, not less than seven (7) Business Days prior to the Payment Date on which the Property Release shall be made, a release (or assignment) of the lien of the Mortgage (and related Loan Documents) for such Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate in the jurisdiction in which the Individual Property is located and that contains standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Release, together with a certificate from an officer of Borrower certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties subject to the Loan Documents not being released);
(d) After giving effect to such Property Release, the Debt Service Coverage Ratio for the Properties then remaining subject to the lien of the Mortgage shall be equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently with the payment of the Release Amount, New Mezzanine Borrower, if any, shall make a partial prepayment of the related New Mezzanine Loan, if any, equal to the related release amount (as defined in the applicable New Mezzanine Loan Documents)Release Price, if any, applicable to such Individual Property, together with any related interest, fees, which prepayment premiums or shall be accompanied by all other amounts payable under the related New Mezzanine Loan Documents, if any, required to be paid in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan DocumentsSection 2.1;
(fii) Borrower shall execute and deliver to reimburse Lender for any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Release;
(g) All reasonable actual out-of-pocket costs and expenses incurred by Lender in connection with such Property Release shall be paid by Borrower. Any assignments made by Lender shall be without recourse, representation or warranty by Lender this Section 2.3 (including the reasonable fees and shall comply with all applicable lawexpenses of legal counsel and the reasonable out-of-pocket expenses of the Servicer);
(hiii) after giving effect to the Allocated Loan Amount release of the Property or Properties, Debt Yield for the applicable Individual PropertyTest Period then most recently ended, when combined with the Allocated Loan Amount recalculated to include only income and expense attributable to the Properties remaining after the contemplated release and to exclude the interest expense on the aggregate amount to be prepaid in connection with such release, shall be no less than the Debt Yield Threshold;
(iv) if the Loan has been Securitized in a REMIC trust, Borrower shall either (x) deliver to Lender an opinion of counsel in form and substance which would be acceptable to a prudent lender of securitized commercial mortgage loans acting reasonably, stating, among other Individual things, that any REMIC Trust formed pursuant to a Securitization will not fail to maintain its status as a REMIC as a result of such release and will not be subject to tax on any “prohibited transactions” or “prohibited contributions” as a result of such release or (y) deliver evidence reasonably satisfactory to Lender that, after giving effect to the release of the Property or Properties, the Lender 80% Determination shall have been satisfied (or, if the same is not so satisfied, then Borrower shall have prepaid the Loan in an amount equal to the lesser of (x) the fair market value of the Property or Properties so released and (y) the amount necessary to obtain a Lender 80% Determination); and
(v) to the extent that the applicable Borrower shall continue to own one or more Properties that have not theretofore been released from the Liens of the Loan Documents, after giving effect to the release of the Property or Properties, the Property or Properties so released shall be owned by a Person that is not a Borrower.
(b) Notwithstanding anything to the contrary contained in this Section, in the event that a default shall occur under a Ground Leased Parcel, which default results in a Default, Borrower shall be permitted to cure any such Default by obtaining a release of the applicable Ground Leased Parcel pursuant to Section 2.3(a) (excluding, solely for purposes of this Section 2.3(b), the Debt Yield requirement set forth in Section 2.3(a)(iii)), provided that the default under the applicable Ground Lease shall not have been caused by, or left uncured by, Borrower for the purpose of circumventing the same.
(c) For the avoidance of doubt, in connection with any release of a Property pursuant to this Section 2.052.3, shall the direct interests in the applicable Borrower and its related Single-Purpose Equityholder (if applicable) may be transferred to a Person that is not represent a Borrower, provided that (i) such Borrower does not continue to own one or more than (x) 15% of Properties that have not theretofore been released from the original principal amount Liens of the Loan in any given twelve (12) consecutive month period, Documents and (yii) the conditions set forth in Section 2.3(a) (subject to Section 2.3(b) in the aggregate, 40% case of a Ground Leased Parcel) shall have been satisfied.
(d) Upon satisfaction of the original principal amount requirements set forth in this Section 2.3, Lender will execute and deliver to Borrower such instruments, prepared by Borrower and reasonably approved by Lender, as shall be necessary to release the applicable Property from the Liens of the Loan over Documents, and to release the entire term applicable Borrower from all further liabilities and obligations under the Loan Documents (other than those expressly provided to survive repayment and unless such applicable Borrower owns one or more other Properties that have not theretofore been released from the Liens of the Loan;
Loan Documents). Thereafter the “Borrower” hereunder shall exclude the Borrower that owned the released Property (i) Borrower shall have provided evidence reasonably acceptable to Lender, that it has terminated unless the applicable Operating Lease with respect to such Individual Borrower owns one or more other Properties that have not theretofore been released from the Liens of the Loan Documents). Any rents or other income from the released Property in accordance with that is thereafter inadvertently paid or deposited into the terms of such Operating Lease including, without limitation, Blocked Account or the payment by Borrower Cash Management Account shall be promptly released to the applicable Tenant of any compensation owing by Borrower to such Tenant under such Operating Lease with respect to the Individual Property being releasedBorrower.
Appears in 1 contract
Property Releases. After the Lockout Period and provided no Event of Default exists, Borrower may obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) Lien of the Mortgage thereon (and the related Loan Documents) and the release of the Borrower’s obligations under the Loan Documents with respect to such Individual Property (other than those expressly stated to survive) (each such release or assignment a “Property Release”), upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lenderconditions:
(a) Borrower No Event of Default shall pay then exist (other than a non-monetary Event of Default that is specific to the Individual Property being released pursuant to this Section 2.9 and which non-monetary Event of Default would be cured as a result of the release of the applicable Individual Property);
(b) The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Amount Price for the applicable Individual Property, and such payment prepayment shall be deemed a voluntary prepayment of a portion of the Loan for all purposes hereunder;
(bc) Borrower shall pay provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to obtain a release of the Individual Property (the “Release Date”) (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lender any applicable Prepayment Premium plus, without duplication, provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property being released (together with all (i) accrued and unpaid interest on such prepaid the principal amount being prepaid, (ii) Breakage Costs, if applicable, (iii) Compensating Interest, if applicable and (iv) the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan through the end Amount of the Interest Period in which such payment or prepayment occursIndividual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(ce) Borrower shall submit to Lender, not less than seven ten (710) Business Days prior to the Payment Date on which the Property Release shall be madeDate, a release (or assignment) of the lien of the Mortgage Lien (and related Loan Documents) for such Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate in the jurisdiction each State in which the Individual Property is located and that contains would be satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Releasesuch release, together with a certificate from an officer of Borrower certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender and recordation thereof, effect such releases in accordance with the terms of this Agreement, and (iiiii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties subject to the Loan Documents not being released). Lender shall deliver such executed release of Lien for such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Release Date;
(df) After giving effect to such Property Releaserelease, Lender shall have determined that the Debt Service Coverage Ratio Yield for the Properties then remaining subject to the lien Liens of the Mortgage Mortgages shall be at least equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or 10.89% and (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently with the payment Yield for all of the Release Amount, New Mezzanine Borrower, if any, shall make a partial prepayment of then remaining Properties (including the related New Mezzanine Loan, if any, equal to the related release amount (as defined in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Release;
(greleased) All reasonable costs and expenses incurred by Lender in connection with such Property Release shall be paid by Borrower. Any assignments made by Lender shall be without recourse, representation or warranty by Lender and shall comply with all applicable law;
(h) the Allocated Loan Amount for the applicable Individual Property, when combined with the Allocated Loan Amount attributable to the other Individual Properties that have been released pursuant to this Section 2.05, shall not represent more than (x) 15% of the original principal amount of the Loan in any given twelve (12) consecutive month period, and (y) in full calendar months immediately preceding the aggregate, 40% release of the original principal amount Individual Property, provided that Borrower shall be permitted to make a prepayment of the Loan over the entire term of the Loan;
(i) Borrower shall have provided evidence reasonably acceptable to Lender, that it has terminated the applicable Operating Lease with respect to such Individual Property in accordance with the terms of such Operating Lease includingSection 2.6 for the purpose of satisfying the Debt Yield requirement in this Section;
(g) Lender shall have received payment of all Lender’s reasonable, without limitationout-of-pocket costs and expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the payment by release of the Individual Property from the lien of the related Mortgage Instrument and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be required to pay any consent, processing, administrative or similar fee in connection with any prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Senior Mezzanine Borrower has complied with all of the applicable Tenant of any compensation owing by Borrower to such Tenant under such Operating Lease terms and conditions set forth in the Senior Mezzanine Loan Agreement with respect to a release of the security interest corresponding to the release requested pursuant to this Section and (ii) Senior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Senior Mezzanine Borrower if applicable; and
(i) [Intentionally Omitted]. Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, (a) on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of an Individual Property being releasedpursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property to be released together with the Allocated Loan Amounts of all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the original principal balance of the Loan (the “Free Prepayment Amount”); and (b) if the Loan is included in a REMIC Trust and the LTV Ratio exceeds or would exceed one hundred twenty five percent (125%) immediately after the release of the applicable Individual Property (such value to be determined, in Lender’s sole discretion, by any commercially reasonable method permitted to a REMIC Trust, based solely on the value of the real property excluding personal property and going concern value, if any; provided that Lender shall not require a re-appraisal or a broker’s opinion of value of the Properties if another commercially reasonable method of valuation of the real property permitted to a REMIC Trust is available to Lender at such time including an internally generated valuation), no release will be permitted unless (i) the principal balance of the Loan is prepaid by an amount not less than the greater of (A) the Release Price for the applicable Individual Property or (B) the least of one (1) of the following amounts: (I) only if the released Individual Property is sold, the net proceeds of an arm’s length sale of the released Individual Property, to an unaffiliated Person, (II) the fair market value of the released Individual Property, at the time of the release, or (III) an amount such that the LTV Ratio immediately after the release of the applicable Individual Property is not greater than the LTV Ratio of the Properties immediately prior to such release, or (ii) Lender receives an opinion of counsel that the Securitization will not fail to maintain its status as a REMIC Trust as a result of the release.
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Property Releases. After the Lockout Period and provided no Event of Default exists, Mortgage Borrower may obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) Lien of the Mortgage thereon (and the related Mortgage Loan Documents) pursuant to Section 2.9 of the Mortgage Loan Agreement, and Borrower shall have the right to obtain the release of the Borrower’s obligations under portion of the Loan Documents with respect Collateral related to such Individual Property being released (other than those expressly stated to survive) (each such release or assignment a “Property Release”), upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lenderconditions:
(a) Borrower No Event of Default shall pay then exist (other than a non-monetary Event of Default that is specific to the Release Amount for Individual Property being released pursuant to this Section 2.9 and which non-monetary Event of Default would be cured as a result of the release of the applicable Individual Property);
(b) The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates, and such payment prepayment shall be deemed a voluntary prepayment of a portion of the Loan for all purposes hereunder;
(bc) Borrower shall pay provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to obtain a release of the Collateral related to the Individual Property (the “Release Date”) (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lender any applicable Prepayment Premium plus, without duplication, provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates (together with all (i) accrued and unpaid interest on such prepaid the principal amount being prepaid, (ii) Breakage Costs, if applicable, (iii) Compensating Interest, if applicable and (iv) the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan through the end Amount of the Interest Period in which such payment or prepayment occursIndividual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(ce) Borrower shall submit to Lender, not less than seven ten (710) Business Days prior to the Payment Date on which the Property Release shall be madeDate, a release (or assignment) of the lien of the Mortgage Lien (and related Loan Documents) for such the portion of the Collateral related to the Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate in the jurisdiction in which the Individual Property is located satisfactory to a prudent institutional lender and that contains shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Releasesuch release, together with a certificate from an officer of Borrower certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender, effect such releases in accordance with the terms of this Agreement, and (iiiii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties the Collateral subject to the Loan Documents not being released). Lender shall deliver such executed release of Lien for the portion of the Collateral related to such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Release Date;
(df) After giving effect to such Property Releaserelease, Lender shall have determined that the Debt Service Coverage Ratio Yield for the Properties then remaining subject to the lien Liens of the Mortgage Mortgages shall be at least equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or 10.89% and (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently with the payment Yield for all of the Release Amount, New Mezzanine Borrower, if any, shall make a partial prepayment of then remaining Properties (including the related New Mezzanine Loan, if any, equal to the related release amount (as defined in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Release;
(greleased) All reasonable costs and expenses incurred by Lender in connection with such Property Release shall be paid by Borrower. Any assignments made by Lender shall be without recourse, representation or warranty by Lender and shall comply with all applicable law;
(h) the Allocated Loan Amount for the applicable Individual Property, when combined with the Allocated Loan Amount attributable to the other Individual Properties that have been released pursuant to this Section 2.05, shall not represent more than (x) 15% of the original principal amount of the Loan in any given twelve (12) consecutive month period, and (y) in full calendar months immediately preceding the aggregate, 40% release of the original principal amount Individual Property, provided that Borrower shall be permitted to make a prepayment of the Loan over the entire term of the Loan;
(i) Borrower shall have provided evidence reasonably acceptable to Lender, that it has terminated the applicable Operating Lease with respect to such Individual Property in accordance with the terms of such Operating Lease includingSection 2.6 for the purpose of satisfying the Debt Yield requirement in this Section;
(g) Lender shall have received payment of all Lender’s reasonable, without limitationout-of-pocket costs and expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the payment by Borrower to release of the applicable Tenant portion of any compensation owing by Borrower to such Tenant under such Operating Lease with respect the Collateral related to the Individual Property being releasedfrom the lien of the related Pledge Agreement and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be required to pay any consent, processing, administrative or similar fee in connection with any prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Mortgage Borrower has complied with all of the terms and conditions set forth in the Mortgage Loan Agreement with respect to a release of the security interest corresponding to the release requested pursuant to this Section and (ii) Mortgage Lender has delivered (or is simultaneously delivering) such release to Mortgage Borrower (if applicable); and
(i) [Intentionally Omitted]. Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of the portion of the Collateral related to an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property to be released together with the Allocated Loan Amounts of all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the original principal balance of the Loan (the “Free Prepayment Amount”).
Appears in 1 contract
Samples: Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Property Releases. After the Lockout Period and provided no Event of Default exists, Borrower may obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) Lien of the Mortgage thereon (and the related Loan Documents) and the release of the Borrower’s obligations under the Loan Documents with respect to such Individual Property (other than those expressly stated to survive) (each such release or assignment a “Property Release”), upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lenderconditions:
(a) Borrower No Event of Default shall pay then exist (other than a non-monetary Event of Default that is specific to the Individual Property being released pursuant to this Section 2.9 and which non-monetary Event of Default would be cured as a result of the release of the applicable Individual Property);
(b) The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Amount Price for the applicable Individual Property, and such payment prepayment shall be deemed a voluntary prepayment of a portion of the Loan for all purposes hereunder;
(bc) Borrower shall pay provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to obtain a release of the Individual Property (the “Release Date”) (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lender any applicable Prepayment Premium plus, without duplication, provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property being released (together with all (i) accrued and unpaid interest on such prepaid the principal amount being prepaid, (ii) Breakage Costs, if applicable, (iii) Compensating Interest, if applicable and (iv) the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan through the end Amount of the Interest Period in which such payment or prepayment occursIndividual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(ce) Borrower shall submit to Lender, not less than seven ten (710) Business Days prior to the Payment Date on which the Property Release shall be madeDate, a release (or assignment) of the lien of the Mortgage Lien (and related Loan Documents) for such Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate in the jurisdiction each State in which the Individual Property is located and that contains would be satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Releasesuch release, together with a certificate from an officer of Borrower certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender and recordation thereof, effect such releases in accordance with the terms of this Agreement, and (iiiii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties subject to the Loan Documents not being released). Lender shall deliver such executed release of Lien for such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Release Date;
(df) After giving effect to such Property Releaserelease, Lender shall have determined that the Debt Service Coverage Ratio Yield for the Properties then remaining subject to the lien Liens of the Mortgage Mortgages shall be at least equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or 9.95% and (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently with the payment Yield for all of the Release Amountthen remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of the Individual Property, New Mezzanine Borrower, if any, provided that Borrower shall be permitted to make a partial prepayment of the related New Mezzanine Loan, if any, equal to Loan in accordance with the related release amount (as defined terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Releasethis Section;
(g) All reasonable Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and expenses expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred by Lender in connection with such the release of the Individual Property Release from the lien of the related Mortgage Instrument and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be paid by Borrower. Any assignments made by Lender shall be without recourserequired to pay any consent, representation processing, administrative or warranty by Lender and shall comply similar fee in connection with all applicable lawany prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Senior Mezzanine Borrower has complied with all of the Allocated terms and conditions set forth in the Senior Mezzanine Loan Amount for Agreement with respect to a release of the applicable Individual Property, when combined with the Allocated Loan Amount attributable security interest corresponding to the other Individual Properties that have been released release requested pursuant to this Section 2.05, shall not represent more than (x) 15% of the original principal amount of the Loan in any given twelve (12) consecutive month period, and (yii) in the aggregate, 40% of the original principal amount of the Loan over the entire term of the Loan;Senior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Senior Mezzanine Borrower if applicable; and
(i) Borrower shall have provided delivered evidence reasonably acceptable satisfactory to Lender, Lender that it (i) Junior Mezzanine Borrower has terminated complied with all of the applicable Operating Lease terms and conditions set forth in the Junior Mezzanine Loan Agreement with respect to a release of the security interest (if applicable) corresponding to the release requested pursuant to this Section and (ii) Junior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Junior Mezzanine Borrower (if applicable). Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, (a) on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property in accordance to be released together with the terms Allocated Loan Amounts of all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the original principal balance of the Loan (the “Free Prepayment Amount”); and (b) if the Loan is included in a REMIC Trust and the LTV Ratio exceeds or would exceed one hundred twenty five percent (125%) immediately after the release of the applicable Individual Property (such Operating Lease includingvalue to be determined, without limitationin Lender’s sole discretion, by any commercially reasonable method permitted to a REMIC Trust, based solely on the value of the real property excluding personal property and going concern value, if any; provided that Lender shall not require a re-appraisal or a broker’s opinion of value of the Properties if another commercially reasonable method of valuation of the real property permitted to a REMIC Trust is available to Lender at such time including an internally generated valuation), no release will be permitted unless (i) the principal balance of the Loan is prepaid by an amount not less than the greater of (A) the Release Price for the applicable Individual Property or (B) the least of one (1) of the following amounts: (I) only if the released Individual Property is sold, the payment by Borrower net proceeds of an arm’s length sale of the released Individual Property, to an unaffiliated Person, (II) the fair market value of the released Individual Property, at the time of the release, or (III) an amount such that the LTV Ratio immediately after the release of the applicable Tenant Individual Property is not greater than the LTV Ratio of any compensation owing by Borrower the Properties immediately prior to such Tenant under such Operating Lease with respect release, or (ii) Lender receives an opinion of counsel that the Securitization will not fail to maintain its status as a REMIC Trust as a result of the Individual Property being releasedrelease.
Appears in 1 contract
Property Releases. After the Lockout Period and provided no Event of Default exists, Mortgage Borrower may obtain the release of an Individual Property from the lien (or at Borrower’s option, an assignment thereof to one or more third parties) Lien of the Mortgage thereon (and the related Mortgage Loan Documents) pursuant to Section 2.9 of the Mortgage Loan Agreement, and Senior Mezzanine Borrower may obtain the release of a portion of the Borrower’s obligations under the Loan Documents with respect Senior Mezzanine Collateral related to such Individual Property (other than those expressly stated to survive) (each such release or assignment a “Property Release”)pursuant to Section 2.9 of the Senior Mezzanine Loan Agreement, upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lenderconditions:
(a) Borrower No Event of Default shall pay then exist (other than a non-monetary Event of Default that is specific to the Release Amount for Individual Property being released pursuant to this Section 2.9 and which non-monetary Event of Default would be cured as a result of the release of the applicable Individual Property);
(i) The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates, and such payment prepayment shall be deemed a voluntary prepayment for all purposes hereunder, and (ii) the amount of a the outstanding principal balance of the Senior Mezzanine Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Loan Senior Mezzanine Collateral relates, and such prepayment shall be deemed a voluntary prepayment for all purposes hereunder;
(bc) Borrower shall pay provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to obtain a release of the Collateral related to the Individual Property (the “Release Date”) (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lender any applicable Prepayment Premium plus, without duplication, provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates (together with all (i) accrued and unpaid interest on such prepaid the principal amount being prepaid, (ii) Breakage Costs, if applicable, (iii) Compensating Interest, if applicable and (iv) the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan through the end Amount of the Interest Period in which such payment or prepayment occursIndividual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(ce) Borrower shall submit to Lender, not less than seven ten (710) Business Days prior to the Payment Date on which the Property Release shall be madeDate, a release (or assignment) of the lien of the Mortgage Lien (and related Loan Documents) for such the portion of the Collateral related to the Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate in the jurisdiction in which the Individual Property is located satisfactory to a prudent institutional lender and that contains shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Releasesuch release, together with a certificate from an officer of Borrower certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender, effect such releases in accordance with the terms of this Agreement, and (iiiii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties the Collateral subject to the Loan Documents not being released). Lender shall deliver such executed release of Lien for the portion of the Collateral related to such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Release Date;
(df) After giving effect to such Property Releaserelease, Lender shall have determined that the Debt Service Coverage Ratio Yield for the Properties then remaining subject to the lien Liens of the Mortgage Mortgages shall be at least equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or 9.95% and (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(e) Concurrently with the payment Yield for all of the Release Amountthen remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of the Individual Property, New Mezzanine Borrower, if any, provided that Borrower shall be permitted to make a partial prepayment of the related New Mezzanine Loan, if any, equal to Loan in accordance with the related release amount (as defined terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in the applicable New Mezzanine Loan Documents), if any, applicable to such Individual Property, together with any related interest, fees, prepayment premiums or other amounts payable under the related New Mezzanine Loan Documents, if any, in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the related New Mezzanine Loan, if any, pursuant to the New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Releasethis Section;
(g) All reasonable Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and expenses expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred by Lender in connection with such the release of the portion of the Collateral related to the Individual Property Release from the lien of the related Pledge Agreement and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be paid by Borrower. Any assignments made by Lender shall be without recourserequired to pay any consent, representation processing, administrative or warranty by Lender and shall comply similar fee in connection with all applicable lawany prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Mortgage Borrower has complied with all of the Allocated terms and conditions set forth in the Mortgage Loan Amount for Agreement with respect to a release of the applicable Individual Property, when combined with the Allocated Loan Amount attributable security interest corresponding to the other Individual Properties that have been released release requested pursuant to this Section 2.05, shall not represent more than (x) 15% of the original principal amount of the Loan in any given twelve (12) consecutive month period, and (yii) in the aggregate, 40% of the original principal amount of the Loan over the entire term of the Loan;Mortgage Lender has delivered (or is simultaneously delivering) such release to Mortgage Borrower (if applicable); and
(i) Borrower shall have provided delivered evidence reasonably acceptable satisfactory to Lender, Lender that it (i) Senior Mezzanine Borrower has terminated complied with all of the applicable Operating Lease terms and conditions set forth in the Senior Mezzanine Loan Agreement with respect to a release of the security interest (if applicable) corresponding to the release requested pursuant to this Section and (ii) Senior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Senior Mezzanine Borrower (if applicable). Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of the portion of the Collateral related to an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property in accordance to be released together with the terms Allocated Loan Amounts of such Operating Lease including, without limitation, all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the payment by Borrower to original principal balance of the applicable Tenant of any compensation owing by Borrower to such Tenant under such Operating Lease with respect to Loan (the Individual Property being released“Free Prepayment Amount”).
Appears in 1 contract
Samples: Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
