Property Releases. Subject to the terms and conditions set forth herein, the Issuer shall have the right, from time to time, on any Payment Date, to obtain a release (a "Property Release") of a Property (a "Released Property") from the lien of this Indenture and the related Security Instrument in connection with (A) the repurchase or substitution of a Property by USRPO in accordance with the Contribution Agreement (a "Seller Release"), (B) the repurchase or substitution by the Property Manager of a Property leased under a Delinquent Lease or a Defaulted Lease in accordance with the Property Management Agreement (a "Property Manager Release"), (C) the purchase of a Property by a Tenant under a Tenant Purchase Option (a "Tenant Release"), (D) the sale of a property by the Issuer to a Person other than the Issuer or its general partner in accordance with Section 8.03(b) (an "Issuer Release"), or (E) the substitution of a Property by the Limited Partners in accordance with Section 8.03(b) (a "Partner Release"). In the event that the Issuer seeks to release a Property from the lien of this Indenture and the related Security Instrument in connection with any of the foregoing, the Indenture Trustee shall release such Property from the lien of this Indenture and the related Security Instrument (and upon the Property Manager's written request and certification as to the satisfaction of the requirements of this Section, the Indenture Trustee shall execute and deliver to the Property Manager such instruments and other documents, prepared by the Property Manager, as the Property Manager may request in order to effectuate such Property Release), but only upon receipt by the Indenture Trustee of the following: (a) At least fifteen (15) days but no more than ninety (90) days prior to the Payment Date on which the Issuer is requesting such Property Release, a written notice of the Issuer in the form attached hereto as Exhibit E (a "Request for Release"), which includes an Officer's Certificate of the Issuer certifying that the requirements set forth in Sections 8.01(f) through (j) shall be true after giving effect to such transfer and on which the Indenture Trustee may conclusively rely; (b) At least five (5) Business Days prior to such Property Release notice of prepayment with respect to any Release Amount applicable to the related Released Property; (c) A wire transfer into the Collection Account of immediately available federal funds in an amount equal to the sum of any Release Amount and any other amounts owing to the Indenture Trustee in connection with the Released Property; (d) Such documents, certificates and assurances that the Indenture Trustee shall reasonably request to evidence and confirm that such Property Release complies with the provisions of this Section 8.01; (e) Payment of all of the Indenture Trustee's reasonable costs and expenses, including 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"); (f) With respect to (i) any Property Manager Release or Partner Release that will result in the aggregate Appraised Value of all Properties released in connection with substitutions by the Property Manager and the Limited Partners since the Closing Date exceeding 10% of the initial Total Appraised Value of the Properties or (ii) any Seller Release in connection with the substitution of a Defective Property in accordance with the Contribution Agreement, the written consent of the Certificate Insurer to such Property Release, which consent is subject to the payment of $5,000 per substitution request to the Certificate Insurer; provided, further, that prior to such substitutions exceeding 10% of the initial Total Appraised Value of the Properties, the Certificate Insurer shall have the right to audit any substitutions by the Property Manager and the Limited Partners once every six months to confirm that the substitutions made since the prior audit (if any) satisfy the requirements of this Section 8.01. The cost of any such audit shall be paid by the Property Manager or the Limited Partners as the case may be; (g) With respect to any Property Release in connection with the substitution of a Substitute Property, (i) certification by the Property Manager that the Substitute Property is a Qualified Substitute Property, and (ii) all documentation necessary to create a valid and enforceable first priority lien on the Substitute Property in favor of the Indenture Trustee, including, without limitation, all of the documents constituting the related Lease File with respect to such Substitute Property; (h) With respect to any Property Release in connection with a substitution by the Property Manager or the Limited Partners, (i) confirmation from S&P that the proposed substitution will not result in a downgrade, qualification or withdrawal of the ratings then assigned to the Grantor Trust Certificates (without regard to the MBIA Policy) and (ii) following 15 business days notice to Moody's of a proposed substitution, no notice from Moody's that such substitution will result in a downgrade, qualification or withdrawal of the ratings then assigned to the Grantor Trust Certificates (without regard to the MBIA Policy) if either (x) such proposed substitution would result in the aggregate Appraised Value of all Released Properties for which substitutions were made exceed 5% of the initial Total Appraised Value of the Properties or (y) such proposed substitution would increase any of the highest five Tenant concentrations above its concentration as of the Closing Date; (i) After giving effect to any such Property Release in connection with a substitution by the Limited Partners or the Property Manager, the aggregate Appraised Value of all Released Properties substituted for by either the Limited Partners or the Property Manager does not exceed either (A) $50,908,712 since the Closing Date or (B)(I) in the case of the Limited Partners $10,181,742 and (II) in the case of the Property Manager $25,454,356, in each case during any 12 month period; and (j) After giving effect to any such Property Release related to an Issuer Release in connection with a sale of a Property by the Issuer, the Remaining Pool Criteria are satisfied and any Early Amortization Event does not exist; provided that the aggregate Appraised Value of all such Released Properties related to Issuer Releases in any 12 month period may not exceed 10% of the Total Appraised Value of the Properties as of the Cut-off Date.
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Property Releases. Subject to the terms and conditions set forth herein, at any time after the Issuer Lockout Date (as defined in the Note), Borrower shall have the right, from time to time, on any Payment DateDate (as defined in the Note), or on any Business Day provided that a payment of the Interest Shortfall (as defined in the Note) is made, to obtain a release (a "Property Release") of a Property (a "Released Property") from the lien of this Indenture and the related Security Instrument Instruments (i) provided that no default under this Agreement, the Note, the Security Instruments or any other Loan Documents has occurred and is continuing, (ii) subject to compliance with the provisions set forth below in connection with this Section 3 of this Agreement; and (Aiii) provided that legal, record, economic and beneficial ownership of the repurchase or substitution of Property for which a Property by USRPO in accordance Release is being requested (the "Release Premises") is simultaneously with the Contribution Agreement granting of the Property Release transferred (a "Seller ReleaseRelease Premises Transfer") to and shall be owned immediately after such Property Release by a person(s), (Bparty(ies) the repurchase or substitution by the Property Manager of a Property leased under a Delinquent Lease or a Defaulted Lease in accordance with the Property Management Agreement (a "Property Manager Release"), (Centity(ies) the purchase of a Property by a Tenant under a Tenant Purchase Option (a "Tenant Release"), (D) the sale of a property by the Issuer to a Person other than the Issuer Borrower or its any managing member or general partner in accordance with Section 8.03(b) of Borrower (an "Issuer Release"), or (E) the substitution of a Property by the Limited Partners in accordance with Section 8.03(b) (a "Partner ReleaseRelease Premises Transferee"). In the event that the Issuer Borrower seeks to release a Property from the lien of this Indenture and the related Security Instrument in connection with any of the foregoingInstrument, the Indenture Trustee Lender shall release such Property from the lien of this Indenture and the related Security Instrument (and upon the Property Manager's written request and certification as to the satisfaction of the requirements of this Section, the Indenture Trustee shall execute and deliver to the Property Manager such instruments and other documents, prepared by the Property Manager, as the Property Manager may request in order to effectuate such Property Release)Loan Documents, but only upon receipt by the Indenture Trustee Lender of the following:
(a) At least fifteen thirty (1530) days but no more than ninety (90) days prior to the Payment Date on which the Issuer is requesting such Property Release, a written notice of the Issuer in the form attached hereto as Exhibit E (its request to obtain a "Request for Release"), which includes an Officer's Certificate release of the Issuer Release Premises;
(b) A certificate of Borrower certifying that the requirements set forth in Sections 8.01(fParagraph 3(f) through (j) of this Agreement shall be true after giving effect to such transfer and on which the Indenture Trustee may conclusively rely;
(b) At least five (5) Business Days prior to such Property Release notice of prepayment with respect to any Release Amount applicable to the related Released Propertytransfer;
(c) A wire transfer into the Collection Account of immediately available federal funds in an amount equal to 115% of the sum Allocated Loan Amount for the Release Premises as set forth on Exhibit B attached hereto and made a part hereof (the "Release Amount"), together with (i) all accrued and unpaid interest on the amount of any Release Amount and any other amounts owing principal being prepaid, (ii) if such payment is not made on a Payment Date, the Interest Shortfall with respect to the Indenture Trustee amount prepaid, and (iii) all other sums due under the Note, the applicable Security Instrument and the applicable other Loan Documents in connection with the Released Propertya partial prepayment;
(d) Such All proposed documents related to the Release Premises Transferee and such documents, certificates and assurances that the Indenture Trustee Lender shall reasonably request to evidence and confirm that such the Release Premises is simultaneously with the Property Release complies with the provisions of this Section 8.01being transferred to a Release Premises Transferee;
(e) Payment of all of the Indenture TrusteeLender's reasonable costs and expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the release of the Property Release from the lien of the related Security Instruments and the review and approval of the documents and information required to be delivered in connection therewith ("Property Release Expenses");
(f) With Evidence reasonably satisfactory to Lender that the Aggregate Debt Service Coverage Ratio (hereinafter defined) for the twelve (12) month period immediately preceding the Property Release with respect to the Properties remaining encumbered by the liens of the Security Instruments after giving effect to the Property Release shall be equal to or greater than the greater of (i) any Property Manager Release or Partner Release that will result in 1.80 to 1.00 (the aggregate Appraised Value of all Properties released in connection with substitutions by the Property Manager "Origination DSCR") and the Limited Partners since the Closing Date exceeding 10% of the initial Total Appraised Value of the Properties or (ii) any Seller Release in connection the Aggregate Debt Service Coverage Ratio with respect to the substitution of a Defective Property in accordance with Properties then encumbered by the Contribution Agreement, the written consent liens of the Certificate Insurer to such Property Release, which consent is subject to the payment of $5,000 per substitution request to the Certificate Insurer; provided, further, that Security Instruments immediately prior to such substitutions exceeding 10% release, for the twelve (12) months immediately preceding the second calendar month prior to the date of the initial Total Appraised Value of proposed Property Release (the Properties, the Certificate Insurer shall have the right to audit any substitutions by the Property Manager and the Limited Partners once every six months to confirm that the substitutions made since the prior audit (if any) satisfy the requirements of this Section 8.01. The cost of any such audit shall be paid by the Property Manager or the Limited Partners as the case may be"Current DSCR");
(g) With respect to If any Securities (as defined in the Security Instruments) have been issued, the written confirmation of the Rating Agencies (as defined in the Security Instruments) that the Property Release in connection with the substitution of a Substitute Property, (i) certification by the Property Manager that the Substitute Property is a Qualified Substitute Property, and (ii) all documentation necessary to create a valid and enforceable first priority lien on the Substitute Property in favor of the Indenture Trustee, including, without limitation, all of the documents constituting the related Lease File with respect to such Substitute Property;
(h) With respect to any Property Release in connection with a substitution by the Property Manager or the Limited Partners, (i) confirmation from S&P that the proposed substitution will shall not result in a downgrade, withdrawal or qualification or withdrawal of the then current ratings then assigned to by the Grantor Trust Certificates (without regard to the MBIA Policy) and (ii) following 15 business days notice to Moody's of a proposed substitution, no notice from Moody's that such substitution will result in a downgrade, qualification or withdrawal applicable Rating Agencies of the ratings then assigned Securities and otherwise in form and substance reasonably satisfactory to the Grantor Trust Certificates Lender and its counsel (without regard to the MBIA Policy) if either (x) such proposed substitution would result in the aggregate Appraised Value of all Released Properties for which substitutions were made exceed 5% of the initial Total Appraised Value of the Properties or (y) such proposed substitution would increase any of the highest five Tenant concentrations above its concentration as of the Closing Date;
(i) After giving effect to any such Property Release in connection with a substitution by the Limited Partners or the Property Manager, the aggregate Appraised Value of all Released Properties substituted for by either the Limited Partners or the Property Manager does not exceed either (A) $50,908,712 since the Closing Date or (B)(I) in the case of the Limited Partners $10,181,742 and (II) in the case of the Property Manager $25,454,356, in each case during any 12 month period; and
(j) After giving effect to any such Property Release related to an Issuer Release in connection with a sale of a Property by the Issuer, the Remaining Pool Criteria are satisfied and any Early Amortization Event does not exist; provided that the aggregate Appraised Value of all such Released Properties related to Issuer Releases in any 12 month period may not exceed 10% of the Total Appraised Value of the Properties as of the Cut-off Date"No Downgrade Letter").
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Property Releases. Subject to the terms and conditions set forth herein, from and after the Issuer Defeasance LockOut Termination Date Borrowers shall have the right, from time to time, on any Scheduled Payment Date, Date (as defined in the Notes) to obtain a release (a "Property Release") of a Property (a "Released Property") from the lien of this Indenture and the related Security Instrument (i) provided that no default under this Agreement, the Notes, the Security Instruments or any other Loan Documents, that in connection Lender's sole judgment is material, has occurred and is continuing, (ii) subject to compliance with the provisions set forth below in this Section 4 and in Section 6 of this Agreement; and (Aiii) provided that, unless Borrowers shall at the repurchase or substitution time of such Property Release be an entity that complies with subsection 8.4(a)(iv)(B) of the Security Instruments, legal, record, economic and beneficial ownership of the Property for which a Property by USRPO in accordance Release is being requested (the "Release Premises") is simultaneously with the Contribution Agreement granting of the Property Release transferred (a "Seller ReleaseRelease Premises Transfer") to and shall be owned immediately after such Property Release by a person(s), (Bparty(ies) the repurchase or substitution by the Property Manager of a Property leased under a Delinquent Lease or a Defaulted Lease in accordance with the Property Management Agreement (a "Property Manager Release"), (Cor,entity(ies) the purchase of a Property by a Tenant under a Tenant Purchase Option (a "Tenant Release"), (D) the sale of a property by the Issuer to a Person other than any Borrower, the Issuer managing member of any Borrower, or its any general partner in accordance with Section 8.03(b) of any Borrower or any person, party or entity owned or controlled by any of the foregoing (an "Issuer Release"), or (E) the substitution of a Property by the Limited Partners in accordance with Section 8.03(b) (a "Partner ReleaseRelease Premises Transferee"). In the event that the Issuer Borrowers seeks to release a Property from the lien of this Indenture and the related Security Instrument in connection with any of the foregoingInstrument, the Indenture Trustee Lender shall release such Property from the lien of this Indenture and the related Security Instrument (and upon the Property Manager's written request and certification as to the satisfaction of the requirements of this Section, the Indenture Trustee shall execute and deliver to the Property Manager such instruments and other documents, prepared by the Property Manager, as the Property Manager may request in order to effectuate such Property Release)Loan Documents, but only upon receipt by the Indenture Trustee Lender of the following:
(a) A. At least fifteen thirty (1530) days but no more than ninety sixty (9060) days prior to the Payment Date on which the Issuer is requesting such Property Release, a written notice of the Issuer in the form attached hereto as Exhibit E (its request to obtain a "Request for Release"), which includes an Officer's Certificate release of the Issuer Release Premises;
B. A certificate of each Borrower certifying that the requirements set forth in Sections 8.01(f) through (j) Paragraphs 4.I. and 4.J. of this Loan Agreement shall be true after giving effect to such transfer and on which the Indenture Trustee may conclusively relytransfer;
(b) C. At least five three (53) Business Days (as defined in the Notes) prior to such Property Release an irrevocable notice of prepayment with respect to any Release Amount applicable to defeasance and the related Released Propertycertification by Borrowers in the form attached hereto as Exhibit A;
D. Defeasance Collateral (cdefined below) with a Collateral Value (defined below) required under Paragraph 6 hereof;
E. A wire transfer into the Collection Account of immediately available federal funds in an amount equal to all sums due under the sum applicable Note or Notes under Section 6 of any Release Amount this Agreement and any other amounts owing to under the Indenture Trustee Loan Documents in connection with the Released Propertya defeasance;
F. Evidence satisfactory to Lender that, other than the Security Instruments, there are no liens (d) Such except as permitted under the Security Instruments), mortgages, deeds of trust or other security instruments, as the case may be, encumbering the Properties remaining encumbered by the lien of the Security Instruments, including without limitation a "bring down" or "date down" of the title insurance policies insuring the liens of the Security Instruments on such remaining Properties;
G. All proposed documents related to the Release Premises Transferee and such documents, certificates and assurances that the Indenture Trustee Lender shall reasonably request to evidence and confirm that such the Release Premises is simultaneously with the Property Release complies with the provisions of this Section 8.01being transferred to a Release Premises Transferee;
(e) H. Payment of all of the Indenture TrusteeLender's reasonable costs and expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the release of the Property Release from the lien of the related Security Instruments and the review and approval of the documents and information required to be delivered in connection therewith ("Property Release Expenses");
I. Evidence satisfactory to Lender that the Aggregate Debt Service Coverage Ratio (fhereinafter defined) With for the twelve (12) month period immediately after the Property Release with respect to the Properties remaining encumbered by the liens of the Security Instruments shall be equal to or greater than the greater of (i) any Property Manager Release or Partner Release that will result in the aggregate Appraised Value of Aggregate Debt Service Coverage Ratio with respect to all Properties released in connection with substitutions by the Property Manager and the Limited Partners since the Closing Date exceeding 10% of the initial Total Appraised Value of the Properties for the four (4) fiscal quarters immediately preceding the date hereof (the "Origination DSCR") or (ii) any Seller the Aggregate Debt Service Coverage Ratio with respect to the Properties then encumbered by the liens of the Security Instruments immediately prior to such release, for the four (4) fiscal quarters immediately preceding the proposed Property Release (the "Current DSCR");
J. Evidence reasonably satisfactory to Lender that Borrower is Solvent (hereinafter defined) and shall not be rendered Insolvent (hereinafter defined) by the Property Release of the Release Premises; and
K. If the Securities (as defined in connection with the substitution of a Defective Property Security Instruments) are then rated by the Rating Agencies (as defined in accordance with the Contribution AgreementSecurity Instruments), the written consent confirmation of the Certificate Insurer to such Property Release, which consent is subject to the payment of $5,000 per substitution request to the Certificate Insurer; provided, further, Rating Agencies that prior to such substitutions exceeding 10% of the initial Total Appraised Value of the Properties, the Certificate Insurer shall have the right to audit any substitutions by neither the Property Manager and Release nor the Limited Partners once every six months to confirm that the substitutions made since the prior audit Defeasance (if anydefined below) satisfy the requirements of this Section 8.01. The cost of any such audit shall be paid by the Property Manager or the Limited Partners as the case may be;
(g) With respect to any Property Release in connection with the substitution of a Substitute Property, (i) certification by the Property Manager that the Substitute Property is a Qualified Substitute Property, and (ii) all documentation necessary to create a valid and enforceable first priority lien on the Substitute Property in favor of the Indenture Trustee, including, without limitation, all of the documents constituting the related Lease File with respect to such Substitute Property;
(h) With respect to any Property Release in connection with a substitution by the Property Manager or the Limited Partners, (i) confirmation from S&P that the proposed substitution will not result in a downgrade, withdrawal or qualification or withdrawal of the then current ratings then assigned to by the Grantor Trust Certificates (without regard to the MBIA Policy) and (ii) following 15 business days notice to Moody's of a proposed substitution, no notice from Moody's that such substitution will result in a downgrade, qualification or withdrawal applicable Rating Agencies of the ratings then assigned Securities and otherwise in form and substance reasonably satisfactory to the Grantor Trust Certificates (without regard to the MBIA Policy) if either (x) such proposed substitution would result in the aggregate Appraised Value of all Released Properties for which substitutions were made exceed 5% of the initial Total Appraised Value of the Properties or (y) such proposed substitution would increase any of the highest five Tenant concentrations above Lender and its concentration as of the Closing Date;
(i) After giving effect to any such Property Release in connection with a substitution by the Limited Partners or the Property Manager, the aggregate Appraised Value of all Released Properties substituted for by either the Limited Partners or the Property Manager does not exceed either (A) $50,908,712 since the Closing Date or (B)(I) in the case of the Limited Partners $10,181,742 and (II) in the case of the Property Manager $25,454,356, in each case during any 12 month period; and
(j) After giving effect to any such Property Release related to an Issuer Release in connection with a sale of a Property by the Issuer, the Remaining Pool Criteria are satisfied and any Early Amortization Event does not exist; provided that the aggregate Appraised Value of all such Released Properties related to Issuer Releases in any 12 month period may not exceed 10% of the Total Appraised Value of the Properties as of the Cut-off Datecounsel.
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Samples: Loan Agreement (Developers Diversified Realty Corp)
Property Releases. Subject (a) Provided no Event of Default is then continuing (other than an Event of Default which would be cured as a result of the release of the applicable Property and the payment of the Release Price in connection with the release of such Property pursuant to and in accordance with this Section 2.2) and all amounts then due and owing to Lender have been paid in full (or such amounts will be paid in full simultaneously with the terms payment of the Release Price in connection with the release of such Property pursuant to and conditions set forth hereinin accordance with this Section 2.2), the Issuer Borrower shall have the right, from time to timeat its option, on any Payment Datenot less than 30 days’ prior written notice to Lender, to obtain a the release (a "Property Release") of a Property (a "Released Property") one or more of the Properties from the lien Liens of this Indenture and the related Security Instrument in connection with Loan Documents, provided that the following conditions shall have been satisfied:
(Ai) Borrower shall prepay the repurchase or substitution of a Property by USRPO in accordance with the Contribution Agreement (a "Seller Release")Loan, (B) the repurchase or substitution by the Property Manager of a Property leased under a Delinquent Lease or a Defaulted Lease in accordance with the Property Management Agreement (a "Property Manager Release"), (C) the purchase of a Property by a Tenant under a Tenant Purchase Option (a "Tenant Release"), (D) the sale of a property by the Issuer to a Person other than the Issuer or its general partner in accordance with Section 8.03(b) (an "Issuer Release")2.1, or (E) the substitution of a Property by the Limited Partners in accordance with Section 8.03(b) (a "Partner Release"). In the event that the Issuer seeks to release a Property from the lien of this Indenture and the related Security Instrument in connection with any of the foregoing, the Indenture Trustee shall release such Property from the lien of this Indenture and the related Security Instrument (and upon the Property Manager's written request and certification as to the satisfaction of the requirements of this Section, the Indenture Trustee shall execute and deliver to the Property Manager such instruments and other documents, prepared by the Property Manager, as the Property Manager may request in order to effectuate such Property Release), but only upon receipt by the Indenture Trustee of the following:
(a) At least fifteen (15) days but no more than ninety (90) days prior to the Payment Date on which the Issuer is requesting such Property Release, a written notice of the Issuer in the form attached hereto as Exhibit E (a "Request for Release"), which includes an Officer's Certificate of the Issuer certifying that the requirements set forth in Sections 8.01(f) through (j) shall be true after giving effect to such transfer and on which the Indenture Trustee may conclusively rely;
(b) At least five (5) Business Days prior to such Property Release notice of prepayment with respect to any Release Amount applicable to the related Released Property;
(c) A wire transfer into the Collection Account of immediately available federal funds in an amount equal to the sum of any applicable Release Amount and any Price, which prepayment shall be accompanied by the other amounts owing specified in Section 2.1;
(ii) The Master Lease shall be amended in order to (A) remove the Indenture Trustee applicable Property therefrom and (B) reduce the Master Lease Rents due thereunder by the amount of the Master Lease Rents which are due under the Master Lease for such Property, as set forth in the Master Lease;
(iii) Such release shall be obtained in connection with the Released sale of such Property to a third party not Affiliated with Borrower;
(iv) Lender shall have received reasonably satisfactory evidence that the Mezzanine Borrower shall have satisfied all of the conditions to the proposed release set forth in each of the Mezzanine Loan Agreement (including a payoff letter and written confirmation from the Mezzanine Lender that satisfactory escrow arrangements in connection with the release of such Property have been established); and
(v) Borrower shall reimburse Lender for any actual, documented out-of-pocket costs and expenses incurred by Lender in connection with this Section 2.2 (including the reasonable fees and expenses of legal counsel and the reasonable out-of-pocket expenses of the Servicer).
(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 Property from the Liens of the Loan Documents.
(c) Notwithstanding the foregoing or anything herein to the contrary, in connection with the release of any Property pursuant to this Section 2.2, if an amount equal to eighty-five percent (85%) of the Net Sales Proceeds from the sale of such Property is greater than the Release Price for such Property;, then Borrower shall deposit an amount equal to the difference between eighty-five percent (85%) of the Net Sales Proceeds from the sale of such Property and the Release Price paid by Borrower (the “Release Deposit Amount”) into the TI/LC and Capital Expenditure Reserve Account to be disbursed pursuant to Section 3.5 hereof, and such Release Deposit Amount shall not be applied as a prepayment of the Loan in accordance with Section 2.1 hereof.
(d) Such documents, certificates and assurances that the Indenture Trustee shall reasonably request to evidence and confirm that such Property Release complies with the provisions Notwithstanding clause (a)(iii) of this Section 8.01;
2.2, Borrower shall be permitted to release Properties to an Affiliate of Borrower, provided that (e1) Payment of all if after consummating such release the aggregate Allocated Loan Amounts of the Indenture Trustee's reasonable costs applicable Property and expenses, including reasonable counsel fees and disbursements incurred in connection with the Property Release and the review and approval of the documents and information required all other Properties previously released pursuant to be delivered in connection therewith ("Property Release Expenses");
(fthis Section 2.2(d) With respect to (i) any Property Manager Release are less than or Partner Release that will result in the aggregate Appraised Value of all Properties released in connection with substitutions by the Property Manager and the Limited Partners since the Closing Date exceeding 10equal 20% of the initial Total Appraised Value Loan Amount, then the Net Sales Proceeds with respect to the release of the Properties or (ii) any Seller Release in connection with the substitution of a Defective Property in accordance with the Contribution Agreement, the written consent of the Certificate Insurer to such Property Release, which consent is subject shall not be less than the greater of (a) the fair market value of such Property (based on a current Appraisal ordered by and acceptable to Lender in its reasonable discretion and at Borrower’s sole cost and expense) and (b) the payment appraised value of $5,000 per substitution request to such Property on the Certificate Insurer; provided, further, that prior to such substitutions exceeding 10% of the initial Total Appraised Value of the Properties, the Certificate Insurer shall have the right to audit any substitutions by the Property Manager and the Limited Partners once every six months to confirm that the substitutions made since the prior audit (if any) satisfy the requirements of this Section 8.01. The cost of any such audit shall be paid by the Property Manager or the Limited Partners as the case may be;
(g) With respect to any Property Release in connection with the substitution of a Substitute Property, (i) certification by the Property Manager that the Substitute Property is a Qualified Substitute PropertyClosing Date, and (ii2) for all documentation necessary other releases to create a valid and enforceable first priority lien on an Affiliate of Borrower pursuant to this Section 2.2, the Substitute Property in favor of the Indenture Trustee, including, without limitation, all of the documents constituting the related Lease File Net Sales Proceeds with respect to such Substitute Property;
release shall not be less than the greater of (ha) With respect to any Property Release in connection with a substitution by the Property Manager or the Limited Partners, (i) confirmation from S&P that the proposed substitution will not result in a downgrade, qualification or withdrawal average of the ratings then assigned fair market value of such Property as determined by two current Appraisals, one appraisal ordered by Borrower and one Appraisal ordered by Lender (both of which Appraisals shall be shall be acceptable to the Grantor Trust Certificates (without regard to the MBIA PolicyLender in its reasonable discretion and at Borrower’s sole cost and expense) and (iib) following 15 business days notice to Moody's the appraised value of a proposed substitution, no notice from Moody's that such substitution will result in a downgrade, qualification or withdrawal of the ratings then assigned to the Grantor Trust Certificates (without regard to the MBIA Policy) if either (x) such proposed substitution would result in the aggregate Appraised Value of all Released Properties for which substitutions were made exceed 5% of the initial Total Appraised Value of the Properties or (y) such proposed substitution would increase any of the highest five Tenant concentrations above its concentration as of Property on the Closing Date;
(i) After giving effect , provided, that, with respect to any such Property Release in connection with a substitution by the Limited Partners or the Property Manager, the aggregate Appraised Value of all Released Properties substituted for by either the Limited Partners or the Property Manager does not exceed either (A) $50,908,712 since the Closing Date or (B)(I) in the case each of the Limited Partners $10,181,742 foregoing clauses (1) and (II) in the case of the Property Manager $25,454,3562), in each case during any 12 month period; and
(j) After giving effect to any such Property no event shall the Net Sales Proceeds be less than the Release related to an Issuer Release in connection with a sale of a Property by the Issuer, the Remaining Pool Criteria are satisfied and any Early Amortization Event does not exist; provided that the aggregate Appraised Value of all such Released Properties related to Issuer Releases in any 12 month period may not exceed 10% of the Total Appraised Value of the Properties as of the Cut-off DatePrice.
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Samples: Loan Agreement (Toys R Us Inc)
Property Releases. Subject (a) So long as no Event of Default is then continuing (other than an Event of Default that would be eliminated after giving effect to the terms and conditions set forth hereinrelease of the Mortgaged Property proposed to be released pursuant to Section 7.1(k)), the Issuer shall have the right, Borrower may from time to timetime obtain the release of one or more of the Mortgaged Properties from the Liens of the Loan Documents and Transfer such Mortgaged Property to an unaffiliated third party in an arms’-length transaction (except that, on any Payment Dateif the release is being effectuated pursuant to the provisions of Section 7.1(k), Borrower may Transfer such Mortgaged Property to obtain a release an Affiliate of Borrower) upon satisfaction of the following conditions:
(i) Borrower shall deliver to Lender notice (a "Property Release"“Release Notice”) of a its intent to release one or more of the Mortgaged 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 and shall specify the Mortgaged Property or Mortgaged Properties that Borrower intends to release. Borrower shall promptly reimburse Lender for any actual out-of-pocket costs and expenses (a "Released Property") from including the lien reasonable fees and expenses of this Indenture legal counsel and the related Security Instrument Servicer) incurred by Lender in connection with a release pursuant to this Section 2.2.
(Aii) At the repurchase or substitution time of such release: (1) Borrower shall prepay a Property by USRPO in accordance with portion of the Contribution Agreement (a "Seller Release")Loan, (B) the repurchase or substitution by the Property Manager of a Property leased under a Delinquent Lease or a Defaulted Lease in accordance with the Property Management Agreement (a "Property Manager Release"), (C) the purchase of a Property by a Tenant under a Tenant Purchase Option (a "Tenant Release"), (D) the sale of a property by the Issuer to a Person other than the Issuer or its general partner in accordance with Section 8.03(b2.1, in an amount equal to (x) (an "Issuer Release"subject to Section 2.2(d), or the applicable Release Price, plus (Ey) the substitution of a Property by the Limited Partners any additional amount required to be prepaid in accordance with Section 8.03(b2.2(d) 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 "Partner Release"release of a Mortgaged Property pursuant to Section 7.1(k). In , the event that DSCR Threshold need not be satisfied if at the Issuer seeks to release a Property from time of such sale Borrower (I) prepays the lien Loan in an amount set forth in clause (1) above, (II) deposits 100% of this Indenture any remaining Excess Transfer Proceeds, after payment of the amount required under clause (1)(y) above and the related Security Instrument in connection with any corresponding sections of the foregoingMezzanine Loan Agreements, into the Indenture Trustee 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(k) shall release such Property from the lien of this Indenture and the related Security Instrument (and upon the Property Manager's written request and certification as 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 (II) above), and (III) during the continuance of the Spread Maintenance Period, pays to Lender and each Mezzanine Lender the applicable Spread Maintenance Amount on the amount so deposited into the Cash Reserve Account as if the Loan and the 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 principal amounts, which prepayments shall be made in accordance with Section 2.1 hereof and the corresponding sections of the Mezzanine Loan Documents (except that the Spread Maintenance Amount, which shall have been paid upon deposit of funds into the Cash Reserve Account, need not be paid a second time upon prepayment).
(iii) Lender shall have received a payoff letter or written confirmation from each 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 of this Sectionin Sections 2.1, the Indenture Trustee 2.2 or 7.1(k), as applicable, Lender shall execute and deliver to the Property Manager Borrower such instruments and other documentsinstruments, prepared by Borrower and approved by Lender (which 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 Mortgaged Property Managerproposed to be released) shall not be unreasonably withheld, conditioned or delayed), as shall be necessary to release the applicable Mortgaged Property Manager may request and the applicable portion of any other Collateral securing the Loan with respect to such Mortgaged Property (excluding any amounts retained in order any Collateral Accounts with respect to effectuate such Mortgaged Property, except as otherwise expressly set forth herein) from the Liens of the Loan Documents (and/or, as applicable, the Qualified Letter(s) of Credit shall be correspondingly reduced). Any Mortgaged Property Releasereleased pursuant to this Section 2.2 or Section 7.1(k) 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. At Borrower’s request, Lender will promptly assign the portion of the 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 then-outstanding Indebtedness) and otherwise in accordance with Section 1.8.
(c) Immediately upon any release of Mortgaged Property pursuant to this Section 2.2 or Section 7.1(k), but only upon receipt the Deferred Maintenance Amount and the Unfunded Obligations Amount required under this Agreement shall be reduced by an amount equal to the Indenture Trustee Unspent Allocated Deferred Maintenance Amount and the Unspent Allocated Unfunded Obligations Amount for such Mortgaged Property.
(d) 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 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 Mortgage Loan Percentage of such Net Proceeds, subject to the following:
(ai) At least fifteen the Release Price Deficit (15as defined below) days but no more than ninety (90) days prior to the Payment Date on which the Issuer is requesting such Property Release, a written notice may not at any time exceed 2% of the Issuer in the form attached hereto as Exhibit E (a "Request for Release"), which includes an Officer's Certificate of the Issuer certifying that the requirements set forth in Sections 8.01(f) through (j) shall be true after giving effect to such transfer and on which the Indenture Trustee may conclusively relyPrincipal Indebtedness;
(bii) At least five (5) Business Days prior after prepayments have been made that reduce the Principal Indebtedness to such Property Release notice of prepayment with respect to any Release Amount applicable to the related Released Property;
(c) A wire transfer into the Collection Account of immediately available federal funds in an amount equal to the sum of any Release Amount and any other amounts owing to the Indenture Trustee in connection with the Released Property;
(d) Such documents, certificates and assurances that the Indenture Trustee shall reasonably request to evidence and confirm that such Property Release complies with the provisions of this Section 8.01;
(e) Payment of all one-half of the Indenture Trustee's reasonable costs and expensesLoan Amount, including 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");
(f) With respect to (i) any Property Manager Release or Partner Release that will result in the aggregate Appraised Value of all Properties released in connection with substitutions by the Property Manager and the Limited Partners since the Closing Date exceeding 10% of the initial Total Appraised Value of the Properties or (ii) any Seller Release in connection with the substitution no release of a Defective Mortgaged Property in accordance with the Contribution Agreement, the written consent of the Certificate Insurer to such Property Release, which consent is subject to the payment of $5,000 per substitution request to the Certificate Insurer; provided, further, that prior to such substitutions exceeding 10% of the initial Total Appraised Value of the Properties, the Certificate Insurer shall have the right to audit any substitutions by the Property Manager and the Limited Partners once every six months to confirm that the substitutions made since the prior audit (if any) satisfy the requirements of this Section 8.01. The cost of any such audit shall be paid by the Property Manager or the Limited Partners as the case may be;
(g) With respect to any Property Release in connection with the substitution of a Substitute Property, (i) certification by the Property Manager permitted that the Substitute Property is a Qualified Substitute Property, and (ii) all documentation necessary to create a valid and enforceable first priority lien on the Substitute Property in favor of the Indenture Trustee, including, without limitation, all of the documents constituting the related Lease File with respect to such Substitute Property;
(h) With respect to any Property Release in connection with a substitution by the Property Manager or the Limited Partners, (i) confirmation from S&P that the proposed substitution will not result in a downgrade, qualification or withdrawal of the ratings then assigned to the Grantor Trust Certificates (without regard to the MBIA Policy) and (ii) following 15 business days notice to Moody's of a proposed substitution, no notice from Moody's that such substitution will result in a downgrade, qualification or withdrawal of the ratings then assigned to the Grantor Trust Certificates (without regard to the MBIA Policy) if either (x) such proposed substitution would result in any increase in the aggregate Appraised Value of Release Price Deficit; and
(iii) if and to the extent the Release Price Deficit is greater than zero, all Released Properties for which substitutions were made exceed 5% Excess Transfer Proceeds shall be applied toward prepayment of the initial Total Appraised Value of Loan and each Mezzanine Loan in proportion to the Properties or (y) such proposed substitution would increase any of Release Price Deficit and the highest five Tenant concentrations above its concentration “Release Price Deficits” under and as of the Closing Date;
(i) After giving effect to any such Property Release in connection with a substitution by the Limited Partners or the Property Manager, the aggregate Appraised Value of all Released Properties substituted for by either the Limited Partners or the Property Manager does not exceed either (A) $50,908,712 since the Closing Date or (B)(I) defined in the case of the Limited Partners $10,181,742 and (II) in the case of the Property Manager $25,454,356respective Mezzanine Loan Agreements, respectively, in each case during any 12 month period; and
(j) After giving effect until reduced to any such Property Release related to an Issuer Release in connection with a sale of a Property by the Issuer, the Remaining Pool Criteria are satisfied and any Early Amortization Event does not exist; provided that the aggregate Appraised Value of all such Released Properties related to Issuer Releases in any 12 month period may not exceed 10% of the Total Appraised Value of the Properties as of the Cut-off Datezero.
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Property Releases. Subject to the terms and conditions set forth herein, the Issuer ----------------- Borrower shall have the right, from time to time, on any Payment DateDate (as defined in the Note), or on any Business Day (as defined in the Note), to obtain a release (a "Property Release") of a Property (a "Released Property") from the lien of this Indenture and the related Security Instrument (i) provided that no default under this Agreement, the Note, the Security Instruments or any other Loan Document has occurred and is continuing and (ii) subject to compliance with the provisions set forth below in connection with (A) this Section 3, legal, record, economic and beneficial ownership of the repurchase or substitution of Property for which a Property by USRPO in accordance Release is being requested (the "Release Premises") is simultaneously with the Contribution Agreement granting of the Property Release transferred (a "Seller ReleaseRelease Premises Transfer") to and shall be owned immediately after such Property Release by a person(s), (Bparty(ies) the repurchase or substitution by the Property Manager of a Property leased under a Delinquent Lease or a Defaulted Lease in accordance with the Property Management Agreement (a "Property Manager Release"), (Centity(ies) the purchase of a Property by a Tenant under a Tenant Purchase Option (a "Tenant Release"), (D) the sale of a property by the Issuer to a Person other than Borrower, the Issuer Operating Tenant (as defined in the Security Instruments) or its general partner in accordance with Section 8.03(b) any affiliate of Borrower or of any Operating Tenant (an "Issuer Release"), or (E) the substitution of a Property by the Limited Partners in accordance with Section 8.03(b) (a "Partner ReleaseRelease Premises Transferee"). In the event that the Issuer Borrower seeks to release a Property from the lien of this Indenture and the related Security Instrument in connection with any of the foregoingInstrument, the Indenture Trustee Lender shall release such Property from the lien of this Indenture and the related Security Instrument (and upon the Property Manager's written request and certification as to the satisfaction of the requirements of this Section, the Indenture Trustee shall execute and deliver to the Property Manager such instruments and other documents, prepared by the Property Manager, as the Property Manager may request in order to effectuate such Property Release)Loan Documents, but only upon receipt by the Indenture Trustee Lender of the following:
(a) At least fifteen thirty (1530) days but no more than ninety (90) days prior to the Payment Date on which the Issuer is requesting such Property Release, a written notice of Borrower's request to obtain a release of the Issuer Release Premises in the form attached hereto as Exhibit E A;
(a "Request for Release"), which includes an Officer's Certificate b) A certificate of the Issuer Borrower certifying that the requirements set forth in Sections 8.01(fParagraph 3(g) through (j) of this Loan Agreement shall be true after giving effect to such transfer and on which the Indenture Trustee may conclusively relytransfer;
(bc) At least five (5) Business Days Days' prior to such Property Release notice of prepayment with respect to any Release Amount applicable to the related Released Propertyprepayment;
(cd) A wire transfer into the Collection Account of immediately available federal funds in an amount equal to the sum of any (i) one hundred twenty five percent (125%) of the Allocated Loan Amount for the Release Premises as set forth on Schedule B attached hereto (the "Release Amount") and (ii) all accrued and unpaid interest with respect to the Release Amount and any other amounts owing to the Indenture Trustee Lender in connection with the Released PropertyRelease Premises, including Breakage Costs, ( as defined in the Note) if any, as set forth in Article 2, Section (c) of the Note;
(de) Such If applicable, all proposed documents related to the Release Premises Transferee and such documents, certificates and assurances that the Indenture Trustee Lender shall reasonably request to evidence and confirm that such the Release Premises is simultaneously with the Property Release complies with the provisions of this Section 8.01being transferred to a Release Premises Transferee;
(ef) Payment of all of the Indenture TrusteeLender's reasonable 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");
(fg) With Evidence satisfactory to Lender that the Aggregate Debt Service Coverage Ratio (hereinafter defined) for the twelve (12) month period immediately preceding the Property Release with respect to the Properties remaining encumbered by the liens of the Security Instruments after giving effect to the Property Release shall be equal to or greater than the greater of (i) any Property Manager Release or Partner Release that will result in the aggregate Appraised Value of Aggregate Debt Service Coverage Ratio with respect to all Properties released in connection with substitutions by the Property Manager and the Limited Partners since the Closing Date exceeding 10% of the initial Total Appraised Value of the Properties for the twelve (12) months immediately preceding the date hereof (1.66 to 1.00; the "Origination DSCR") or (ii) any Seller Release in connection the Aggregate Debt Service Coverage Ratio with the substitution of a Defective Property in accordance with the Contribution Agreement, the written consent respect to all of the Certificate Insurer to such Property Release, which consent is subject to Properties then encumbered by the payment liens of $5,000 per substitution request to the Certificate Insurer; provided, further, that Security Instruments immediately prior to such substitutions exceeding 10% release, for the twelve (12) months immediately preceding the second calendar month prior to the date of the initial Total Appraised Value of the Properties, the Certificate Insurer shall have the right to audit any substitutions by the Property Manager and the Limited Partners once every six months to confirm that the substitutions made since the prior audit (if any) satisfy the requirements of this Section 8.01. The cost of any such audit shall be paid by the Property Manager or the Limited Partners as the case may be;
(g) With respect to any proposed Property Release in connection with (the substitution of a Substitute Property, (i) certification by the Property Manager that the Substitute Property is a Qualified Substitute Property, and (ii) all documentation necessary to create a valid and enforceable first priority lien on the Substitute Property in favor of the Indenture Trustee, including, without limitation, all of the documents constituting the related Lease File with respect to such Substitute Property"Current DSCR");
(h) With respect to any If the Securities (as defined herein) are then rated by the Rating Agencies (as defined in the Security Instruments), the written confirmation of the Rating Agencies that the Property Release in connection with a substitution by the Property Manager or the Limited Partners, (i) confirmation from S&P that the proposed substitution will shall not result in a downgrade, withdrawal or qualification or withdrawal of the then current ratings then assigned to by the Grantor Trust Certificates (without regard to the MBIA Policy) and (ii) following 15 business days notice to Moody's of a proposed substitution, no notice from Moody's that such substitution will result in a downgrade, qualification or withdrawal applicable Rating Agencies of the ratings then assigned Securities and otherwise in form and substance reasonably satisfactory to the Grantor Trust Certificates (without regard to the MBIA Policy) if either (x) such proposed substitution would result in the aggregate Appraised Value of all Released Properties for which substitutions were made exceed 5% of the initial Total Appraised Value of the Properties or (y) such proposed substitution would increase any of the highest five Tenant concentrations above Lender and its concentration as of the Closing Date;counsel; and
(i) After If the Operating Lease for the Release Premises (as defined in the related Security Instruments) has been terminated pursuant to Section 36.1 of the Operating Lease, and, after giving effect to such Release, the Borrower that owned the Release Premises prior thereto (the "Release Premises Transferor") is the owner of a Property that remains encumbered by the lien of the Security Instruments, an estoppel certificate from the Operating Tenant in form satisfactory to Lender stating that the Operating Lease has been terminated and that the Operating Tenant has released the Release Premises Transferor from all liability for the payment of any such Property and all termination payments or any other payments due to the Operating Tenant pursuant to the terms of the Operating Lease and that the Release Premises Transferor has no further liability or obligation in connection with a substitution by said Operating Lease or, if the Limited Partners Operating Lease on the Release Premises has not been terminated, an estoppel certificate from the Operating Tenant in form satisfactory to Lender that such Operating Lease, as it relates to the Release Premises, is and will remain in full force and effect following the Release Premises Transfer and that the Release Premises Transferor has no liability for the payment of any termination payments or any other payments due to the Property Manager, Operating Tenant pursuant to the aggregate Appraised Value of all Released Properties substituted for by either the Limited Partners or the Property Manager does not exceed either (A) $50,908,712 since the Closing Date or (B)(I) in the case terms of the Limited Partners $10,181,742 Operating Lease and (II) in that the case of the Property Manager $25,454,356, in each case during any 12 month period; and
(j) After giving effect to any such Property Release related to an Issuer Release Premises Transferor has no further liability or obligation in connection with a sale of a Property by the Issuer, the Remaining Pool Criteria are satisfied and any Early Amortization Event does not exist; provided that the aggregate Appraised Value of all such Released Properties related to Issuer Releases in any 12 month period may not exceed 10% of the Total Appraised Value of the Properties as of the Cut-off Datesaid Operating Lease.
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