Common use of Release of Out-Parcels Clause in Contracts

Release of Out-Parcels. Subject to the terms and conditions set forth in this Section 2.9, at any time after the date hereof, Borrower may permit Mortgage Borrower to transfer and obtain a release of an Out Parcel from the Lien of the applicable Mortgage, provided that the following conditions precedent have been satisfied: (a) At the time Borrower or Mortgage Borrower requests the right to cause such release and at the time such right to cause release is granted there is no continuing Event of Default. (b) Lender shall have received at least thirty (30) days prior written notice requesting the right to cause the release and identifying the Out Parcel. (c) The intended use of such Out Parcel shall not have a material adverse effect on the value, use, operation or occupancy of the applicable Individual Property. (d) There shall be vehicular ingress and egress to the remainder of the applicable Individual Property from public streets (or from appurtenant easements) and pedestrian ingress and egress to improvements on the remainder of the applicable Individual Property following such release. (e) Upon the transfer and release of the Out Parcel and after the completion of the standard approval process for tax lot-splits by the applicable municipal authority exercising jurisdiction over the Out Parcel, no part of the remaining applicable Individual Property shall be part of a tax lot which includes any portion of the related Out Parcel. (f) Each applicable municipal authority exercising jurisdiction over the Out Parcel shall have approved, as part of its standard approval process, a lot-split ordinance or other applicable action under local law dividing the Out Parcel from the remainder of the applicable Individual Property and the required procedures or processes necessary for the assignment of separate tax identification numbers to each shall be initiated concurrently with the release and transfer of the Out Parcel. (g) All requirements under all Legal Requirements (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetlands requirements) applicable to the applicable Individual Property necessary to accomplish the lot split shall have been fulfilled, and all necessary variances, if any, shall have been obtained, and evidence thereof shall have been delivered to Lender which in form and substance shall be appropriate for the jurisdiction in which the applicable Individual Property is located. (h) As a result of the lot split, the remaining applicable Individual Property with all easements appurtenant and other Permitted Encumbrances thereto will not be in violation of any then applicable Legal Requirements (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetland requirements) and all necessary variances, if any, shall have been obtained and evidence thereof shall have been delivered to Lender which in form and substance shall be appropriate for the jurisdiction in which the applicable Individual Property is located. (i) Lender shall receive evidence that the single purpose nature and bankruptcy remoteness of Borrower, Mortgage Borrower and their respective shareholders or partners following such release have not been adversely affected and are in accordance with the terms and provisions of the Loan Documents (which requirement may include a “bring-down” of the Insolvency Opinion previously delivered to Lender in connection with the origination of the Loan). (j) Appropriate reciprocal easement agreements for the benefit and burden of the remaining applicable Individual Property and the Out Parcel regarding the use of common facilities of such parcels, including, but not limited to, roadways, parking areas, utilities and community facilities, in form and substance that would be reasonably acceptable to an ordinary prudent lender with respect to comparable property and which easements will not materially adversely affect the value of the remaining applicable Individual Property, shall be declared and recorded, and the remaining applicable Individual Property and the Out Parcel shall be in compliance with all applicable covenants under all easements and property agreements contained in the Permitted Encumbrances for the applicable Individual Property.

Release of Out-Parcels. Subject to the terms and conditions set forth in this Section 2.9, at any time after the date hereof, Borrower may permit Mortgage Borrower to transfer and obtain a release of an Out Parcel from the Lien of the applicable MortgageMortgage (and Lender shall execute instruments of release in duly recordable form and in the case of the El Con Individual Property or the El San Xxxx Individual Property, Lender shall release and endorse (without recourse, representation or warranty) to Borrower any mortgage notes securing mortgages on such Properties), provided that the following conditions precedent have been satisfied: (a) At the time Borrower or Mortgage Borrower requests the right to cause such release and at the time such right to cause release is granted there is no continuing Event of Default. (b) Lender shall have received at least thirty (30) days prior written notice requesting the right to cause the release and identifying the Out Parcel. (c) The intended use of such Out Parcel shall not have a material adverse effect on the value, use, operation or occupancy of the applicable Individual Property. (d) There shall be vehicular ingress and egress to the remainder of the applicable Individual Property from public streets (or from appurtenant easements) and pedestrian ingress and egress to improvements on the remainder of the applicable Individual Property following such release. (e) Upon the transfer and release of the Out Parcel and after the completion of the standard approval process for tax lot-splits by the applicable municipal authority exercising jurisdiction over the Out Parcel, no part of the remaining applicable Individual Property shall be part of a tax lot which includes any portion of the related Out Parcel. (f) Each applicable municipal authority exercising jurisdiction over the Out Parcel shall have approved, as part of its standard approval process, a lot-split ordinance or other applicable action under local law dividing the Out Parcel from the remainder of the applicable Individual Property and the required procedures or processes necessary for the assignment of separate tax identification numbers to each shall be initiated concurrently with the release and transfer of the Out Parcel. (g) All requirements under all Legal Requirements (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetlands requirements) applicable to the applicable Individual Property necessary to accomplish the lot split shall have been fulfilled, and all necessary variances, if any, shall have been obtained, and evidence thereof shall have been delivered to Lender which in form and substance shall be appropriate for the jurisdiction in which the applicable Individual Property is located. (h) As a result of the lot split, the remaining applicable Individual Property with all easements appurtenant and other Permitted Encumbrances thereto will not be in violation of any then applicable Legal Requirements (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetland requirements) and all necessary variances, if any, shall have been obtained and evidence thereof shall have been delivered to Lender which in form and substance shall be appropriate for the jurisdiction in which the applicable Individual Property is located. (i) Lender shall receive evidence that the single purpose nature and bankruptcy remoteness of Borrower, Mortgage Borrower and their respective its shareholders or partners following such release have not been adversely affected and are in accordance with the terms and provisions of the Loan Documents (which requirement may include a “bring-down” of the Insolvency Opinion previously delivered to Lender in connection with the origination of the Loan). (j) Appropriate reciprocal easement agreements for the benefit and burden of the remaining applicable Individual Property and the Out Parcel regarding the use of common facilities of such parcels, including, but not limited to, roadways, parking areas, utilities and community facilities, in form and substance that would be reasonably acceptable to an ordinary prudent lender with respect to comparable property and which easements will not materially adversely affect the value of the remaining applicable Individual Property, shall be declared and recorded, and the remaining applicable Individual Property and the Out Parcel shall be in compliance with all applicable covenants under all easements and property agreements contained in the Permitted Encumbrances for the applicable Individual Property. (k) Lender shall have received (i) an appropriate title policy endorsement or other evidence reasonably satisfactory to Lender to the effect that the release of the Out Parcel will not have an adverse affect on the priority of the Lien of the related Mortgage on the remaining applicable Individual Property, provided, however, the Lien of the Mortgage on the remaining applicable Individual Property shall be subordinated to any easements created or access or use agreements entered into in connection with the release of the Out Parcel pursuant to this Section 2.9 in the event such easements or agreements (A) are reasonably necessary to the operation of the Out Parcel and (B) do not, in the aggregate, materially adversely affect (1) the value of the remaining applicable Individual Property or (2) the Borrower’s ability to pay its obligations under the Loan, and (ii) an appropriate title policy endorsement or other evidence reasonably satisfactory to Lender that there are no new or additional subordinate Liens on the remaining applicable Individual Property other than Permitted Encumbrances (which term shall include the easements and agreement entered into in accordance with this Section 2.9). (l) Lender shall have received surveys of the Out Parcel and of the remaining applicable Individual Property satisfying the requirements set forth in Section 3.1.3(c) hereof. (m) The transferee of such Out Parcel shall have assumed all of Borrower’s obligations, if any, relating only to the Out Parcel (other than the Loan Documents) arising from and after the release. (n) Borrower shall reimburse Lender for any out-of-pocket costs and expenses it reasonably incurs arising from the transfer of the Out Parcel and any release of the Out Parcel from the Lien of the applicable Mortgage (including, without limitation, reasonable attorneys’ fees and expenses); however, Borrower shall not be required to pay any fee to Lender or Servicer in connection with the transfer or release. Individual Borrower shall have paid all recording charges, filing fees, taxes or other expenses payable in connection with the release. (o) Borrower shall pay to Lender as a prepayment of the Loan an amount equal to the sum of (i) one hundred twenty percent (120%) of the applicable release price for the Out Parcel, if any, set forth on Schedule 1.1 hereto and (ii) the Prepayment Spread Maintenance Payment, if any, due in connection therewith. Upon such payment, the Release Amount for the applicable Individual Property shall be reduced by an amount equal to the amount calculated under clause (i) above. (p) Borrower shall submit to Lender a release of Lien (and related Loan Documents) for the Out Parcel for execution by Lender. Such release shall be in a form appropriate for the jurisdiction in which the applicable Individual Property is located and that would be satisfactory to an ordinary prudent lender and that contains standard provisions, if any, protecting the rights of the releasing lender (and in case at Puerto Rico, will include notation of the release on the mortgage notes secured by the mortgages on such Puerto Rico Properties). (q) Borrower has delivered an Officer’s Certificate to the effect that, to such officer’s knowledge, the conditions in subsections (a)-(p) hereof have occurred or shall occur concurrently with the transfer and release of the Out Parcel. (r) Borrower shall deliver an opinion of counsel reasonably acceptable to the Rating Agencies, if the Loan is part of a Securitization, that the release of the Out Parcel does not constitute a “significant modification” of the Loan under Section 1001 of the Code or otherwise cause a tax to be imposed on a “prohibited transaction” by any REMIC Trust. (s) Borrower shall execute such documents and instruments and obtain such opinions of counsel as are typical for similar transactions and as may be reasonable required by Lender and not inconsistent with the provisions hereof.