Release of Properties. On one or more occasions, the Borrowers may obtain the release (each, a "RELEASE") of one or more Properties from the Lien of the applicable Mortgage(s) in connection with a partial or total defeasance of the Loan subject to the conditions of the Note and subject to the satisfaction of the following conditions: (A) Lender shall have received from the Borrowers at least fifteen (15) days prior written notice of the date proposed for such release (the "RELEASE DATE") which notice is revocable; (B) No Event of Default shall have occurred and be continuing as of the date of such notice and the Release Date; (C) On the date proposed for such Release, the Borrowers shall defease all or a portion of the Loan by delivering a Defeasance Deposit (as defined in the Note) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the Note) for the entire principal amount of the Loan in the case of a total defeasance, or in the case of a partial defeasance, relating to the Release Price of each Property being released (together with all accrued and unpaid interest on the principal amount being so defeased), and such defeasance shall be undertaken in accordance with the terms and conditions of the Note, and Mezzanine Lender shall have received all amounts required to be paid to it in connection with such Release under the Mezzanine Loan Documents; (D) If required by any Rating Agency, the Borrowers at their sole cost and expense, in connection with any partial defeasance, shall have delivered to Lender, one or more endorsements to the Title Policies delivered to Lender on the date hereof in connection with the Mortgages insuring that, after giving effect to such Release, (i) the Liens created hereby and thereby and insured under the Title Policies are first priority Liens on the respective remaining Properties subject only to the Permitted Encumbrances applicable to the remaining Properties and (ii) that the Title Policies remain in full force and effect and unaffected by such Release; (E) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) shall be equal to or greater than the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) in effect at Closing, or immediately prior to the Release, whichever is greater; (F) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 of any Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance of the Loan except pursuant to a total defeasance; (G) The Borrowers shall pay all reasonable out-of-pocket costs and expenses (including, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursements) incurred by Lender, Servicer, and any custodian employed by Lender or Servicer, in connection with the Release; and (H) Immediately following such Property Release, each released Property will be owned by a Person other than the Borrowers, except as otherwise permitted in connection with any full or partial defeasance of the Loan in accordance with the terms and conditions of the Note. Upon satisfaction of the above conditions, Lender shall effectuate the following (hereinafter referred to as a "PROPERTY RELEASE"): the security interest of Lender under the Mortgage and other Loan Documents relating to each released Property shall be released and Lender will execute and deliver any agreements reasonably requested by the Borrowers to release and terminate or reassign, at the Borrowers' option, the Mortgage, the applicable Assignment of Leases, and financing statements as to each released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage relating to a released Property all references herein to the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. In addition, promptly after consummation of any such Property Release and Lender's receipt of the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the Borrowers.
Appears in 4 contracts
Samples: Loan and Security Agreement (Lodgian Inc), Loan and Security Agreement (Lodgian Inc), Loan Agreement (Lodgian Inc)
Release of Properties. On one or more occasions, the Borrowers may obtain the release (each, a "RELEASE") of one or more Properties from the Lien of the applicable Mortgage(s) in connection with a partial or total defeasance of the Loan subject to the conditions of the Note and subject to the satisfaction of the following conditions:
(A) Lender shall have received from the Borrowers at least fifteen (15) days prior written notice of the date proposed for such release (the "RELEASE DATE") which notice is revocable;
(B) No Event of Default shall have occurred and be continuing as of the date of such notice and the Release Date;
(C) On the date proposed for such Release, the Borrowers shall defease all or a portion of the Loan by delivering a Defeasance Deposit (as defined in the Note) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the Note) for the entire principal amount of the Loan in the case of a total defeasance, or in the case of a partial defeasance, relating to the Release Price of each Property being released (together with all accrued and unpaid interest on the principal amount being so defeased), and such defeasance shall be undertaken in accordance with the terms and conditions of the Note, and Mezzanine Lender shall have received all amounts required to be paid to it in connection with such Release under the Mezzanine Loan Documents;
(D) If required by any Rating Agency, the Borrowers at their sole cost and expense, in connection with any partial defeasance, shall have delivered to Lender, one or more endorsements to the Title Policies delivered to Lender on the date hereof in connection with the Mortgages insuring that, after giving effect to such Release, (i) the Liens created hereby and thereby and insured under the Title Policies are first priority Liens on the respective remaining Properties subject only to the Permitted Encumbrances applicable to the remaining Properties and (ii) that the Title Policies remain in full force and effect and unaffected by such Release;
(E) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) shall be equal to or greater than the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) in effect at Closing, or immediately prior to the Release, whichever is greater;
(FA) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 of any Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance of the Loan except pursuant to a total defeasance;
(GF) The Borrowers shall pay all reasonable out-of-pocket costs and expenses (including, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursements) incurred by Lender, Servicer, and any custodian employed by Lender or Servicer, in connection with the Release; and
(HG) Immediately following such Property Release, each released Property will be owned by a Person other than the Borrowers, except as otherwise permitted in connection with any full or partial defeasance of the Loan in accordance with the terms and conditions of the Note. Upon satisfaction of the above conditions, Lender shall effectuate the following (hereinafter referred to as a "PROPERTY RELEASE"): the security interest of Lender under the Mortgage and other Loan Documents relating to each released Property shall be released and Lender will execute and deliver any agreements reasonably requested by the Borrowers to release and terminate or reassign, at the Borrowers' option, the Mortgage, the applicable Assignment of Leases, and financing statements as to each released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage relating to a released Property all references herein to the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. In addition, promptly after consummation of any such Property Release and Lender's receipt of the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the Borrowers.
Appears in 3 contracts
Samples: Loan and Security Agreement (Lodgian Inc), Loan and Security Agreement (Lodgian Inc), Loan and Security Agreement (Lodgian Inc)
Release of Properties. On one or more occasionsFrom time to time the Borrower may request, the Borrowers may obtain the release (each, a "RELEASE") of one or more Properties from the Lien of the applicable Mortgage(s) in connection with a partial or total defeasance of the Loan subject to the conditions of the Note and subject to the satisfaction of the following conditions:
(A) Lender shall have received from the Borrowers at least fifteen (15) upon not less than 10 days prior written notice to the Administrative Agent (or such shorter period as may be acceptable to the Administrative Agent in its sole discretion), that a Borrowing Base Asset be no longer considered a Borrowing Base Asset, which release (a “Property Release”) shall be effected by the Administrative Agent if the Administrative Agent determines all of the date proposed for such release (the "RELEASE DATE") which notice is revocable;
(B) No Event of Default shall have occurred and be continuing following conditions are satisfied as of the date of such notice Property Release:
(a) No Default or Event of Default exists or will exist immediately after giving effect to such Property Release and the Release Datereduction in the Borrowing Base by reason of such Property Release;
(Cb) On The representations and warranties made or deemed made by the date proposed for such Release, the Borrowers shall defease all or a portion of Borrower and each other Loan Party in the Loan by delivering Documents to which any of them is a Defeasance Deposit party, are true and correct in all material respects (as defined in the Note) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the Note) for the entire principal amount of the Loan except in the case of a total defeasancerepresentation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) immediately prior to and after giving effect to such Property Removal with the same force and effect as if made on and as of such date except to the extent (i) that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a partial defeasancerepresentation or warranty qualified by materiality, relating to the Release Price in which case such representation or warranty shall have been true and correct in all respects) on and as of each Property being released (together with all accrued and unpaid interest on the principal amount being so defeasedsuch earlier date), and such defeasance shall be undertaken (ii) of changes in accordance with factual circumstances resulting from transactions permitted by the terms and conditions of the Note, and Mezzanine Lender shall have received all amounts required to be paid to it in connection with such Release under the Mezzanine Loan Documents;
(Dc) If required by any Rating Agency, the Borrowers at their sole cost and expense, in connection with any partial defeasance, The Borrower shall have delivered to Lenderthe Administrative Agent a Borrowing Base Certificate and Compliance Certificate demonstrating on a pro forma basis, one or more endorsements and the Administrative Agent shall have determined to the Title Policies delivered to Lender on the date hereof in connection with the Mortgages insuring thatits reasonable satisfaction, that after giving effect to such Releaserequest and any prepayment of the Loans or other Indebtedness to be made and/or the acceptance of any Property, (i) Mortgage Receivable or cash or cash equivalents as an additional or replacement Borrowing Base Asset to be given concurrently with such request, that the Liens created hereby and thereby and insured under Borrower will be in compliance with the Title Policies are first priority Liens on the respective remaining Properties subject only covenants set forth in Section 10.1. after giving effect to the Permitted Encumbrances applicable to the remaining Properties and (ii) that the Title Policies remain in full force and effect and unaffected by such Release;
(E) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) shall be equal to or greater than the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) in effect at Closing, or immediately prior to the Release, whichever is greater;
(F) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 of any Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance of the Loan except pursuant to a total defeasance;
(G) The Borrowers shall pay all reasonable out-of-pocket costs and expenses (including, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursements) incurred by Lender, Servicer, and any custodian employed by Lender or Servicer, in connection with the Release; and
(Hd) Immediately following After giving effect to such Property Release, each released the number of Borrowing Base Properties shall be at least 35, and the aggregate Unencumbered Eligible Property will Values of such Borrowing Base Properties shall be owned at least $150,000,000. Delivery by the Borrower to the Administrative Agent of a Person other than request for a Property Release shall constitute a representation by the Borrowers, except Borrower that the matters set forth in the immediately preceding clauses (a) and (b) (both as otherwise permitted in connection with any full or partial defeasance of the Loan in accordance with the terms and conditions date of the Note. Upon satisfaction giving of such request and as of the above conditions, Lender shall effectuate date of the following (hereinafter referred to as a "PROPERTY RELEASE"): the security interest effectiveness of Lender under the Mortgage such request) are true and other Loan Documents relating to each released Property shall be released and Lender will execute and deliver any agreements reasonably requested by the Borrowers to release and terminate or reassign, at the Borrowers' option, the Mortgage, the applicable Assignment of Leases, and financing statements as to each released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage relating to a released Property all references herein to the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein correct with respect to indemnities. In addition, promptly after consummation of any such Property Release and Lender's receipt of the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the Borrowersrequest.
Appears in 2 contracts
Samples: Credit Agreement (Broadstone Net Lease Inc), Credit Agreement (Broadstone Net Lease Inc)
Release of Properties. On Borrower shall have the right to obtain a release of one or more occasions, of the Borrowers may obtain the release Individual Properties (each, a "RELEASE"Property Release and such Individual Property being a Release Property) of one or more Properties in whole, but not in part, from the Lien of the applicable Mortgage(sSecurity Instrument (1) at any time during the Prepayment Period with respect to any Individual Property and (2) at any time following the expiration of the Defeasance Lockout Period with respect to any Individual Property in connection with a partial or total defeasance Defeasance consummated in accordance with Article IX, provided that in any case all of the Loan following conditions are satisfied:
(i) Borrower delivers a Prepayment Notice with respect to such Property Release no less than ten (10) Business Days prior to the proposed date of such Property Release (the Release Date). In no event shall a Property Release occur (and Lender shall have no obligation to release any Individual Property) on a date that is not a Release Date.
(ii) The Individual Property to be released shall be conveyed to a Person other than the Borrower or any of its Affiliates. If the Individual Property to be released is subject to the conditions of BofA Lease, then the Note release shall be made in accordance with and subject to the satisfaction terms of the following conditions:BofA Lease and such Individual Property shall be released from the BofA Lease and be made subject to a separate lease.
(Aiii) Lender shall have received from On such Release Date, concurrently with Lender’s release of such Release Property, (1) if the Borrowers at least fifteen (15) days Release Date occurs prior written notice to the expiration of the date proposed for Prepayment Period, Borrower shall repay a portion of the Principal Amount equal to the Release Price applicable to the Release Property (provided no releases pursuant to this clause (1) will be permitted during the Prepayment Period once Borrower has made an aggregate of $19,220,000 in prepayments and no Releases pursuant to clause (1) or (2) of this Section 8.7(iii) shall be permitted during the period commencing at the expiration of the Prepayment Period through the expiration of the Defeasance Lockout Period), (2) if such release Release Date occurs following the expiration of the Defeasance Lockout Period, Borrower satisfies the Defeasance requirements pursuant to Article IX with respect to the applicable Individual Property which is such Release Property, including, without limitation, providing Lender with Defeasance Collateral that satisfies the Defeasance Collateral Requirement with respect to such Release Property and (the "RELEASE DATE"3) which notice is revocable;Borrower pays all other amounts required to be paid pursuant to Section 2.3.1(e) and (f) of this Agreement.
(Biv) No Event of Default shall have occurred and be is then continuing as of on the date of such notice on which Borrower delivers the Prepayment Notice and on the Release Date;.
(Cv) On the date proposed for such Release, the Borrowers shall defease all or a portion Upon satisfaction of the requirements contained in this Section 8.7, Borrower shall submit to Lender not less than one (1) Business Day prior to the Release Date for execution and delivery by Lender, a release of Liens (and related Loan by delivering Documents) for each applicable Release Property in a Defeasance Deposit (as defined form customary in the Note) applicable state and otherwise satisfactory to Lender in an amount necessary its reasonable discretion and all other documentation Lender reasonably requires to pay all Scheduled Defeasance Payments be delivered by Borrower in connection with such release (as defined in the Notecollectively, Release Instruments) for the entire principal amount Release Property (for execution by Lender) together with an Officer’s Certificate certifying that (1) the Release Instruments are in compliance with all Legal Requirements, (2) the release to be effected will not violate the terms of this Agreement, and (3) the release to be effected will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan in the case of a total defeasance, or in the case of a partial defeasance, relating Documents with respect to the Individual Properties and other collateral not being released.
(vi) Lender shall have received evidence reasonably acceptable to Lender that
(1) the Release Price of each Property being released (together with all accrued and unpaid interest on the principal amount being so defeased), and such defeasance shall be undertaken constitute a separate conveyable legal parcel in accordance with the terms and conditions subdivision map act or the equivalent thereof in the jurisdiction of the Noteapplicable Release Property or other relevant granted government approvals in such jurisdiction;
(2) to the extent any easements benefiting or burdening such Release Property are necessary or appropriate for the use or operation of the other Individual Properties that are not subject to the Property Release (such remaining Individual Properties, the Remaining Property), such easements shall have been granted or reserved prior to or at the time of the release or reconveyance of such Release Parcel;
(3) at the time of, but not prior to, any Property Release, each Release Property shall be transferred to a person or entity that does not result in a breach of Borrower’s obligation to be a Single Purpose Entity; and
(4) if the Release Property is less than an entire Individual Property, (A) the Remaining Property shall remain legal parcels in compliance in all material respects with all Legal Requirements, zoning, subdivision, land use and Mezzanine other applicable laws and regulations, (B) Lender shall have received satisfactory evidence that any tax, bond or assessment that constitutes a Lien against the Release Property has (i) prior to such Property Release, been properly allocated between the Release Property and the Remaining Property and (ii) after such Property Release, will be properly assessed against the Release Property and the Remaining Property separately; and (C) Lender shall have received such endorsements to the Title Policy (or substantially equivalent assurance) for the applicable Remaining Property as Lender may reasonably require confirming continuing title insurance and that (i) the Security Instrument constitutes a first priority lien (subject to Permitted Encumbrances) on the Remaining Property after the Property Release, (ii) the Remaining Property constitutes a separate tax lot or tax lots and (iii) such Property Release shall not result in the Remaining Property ceasing to comply in all amounts material respects with all applicable Legal Requirements, zoning, land use and subdivision laws.
(vii) Borrower shall execute and deliver such other instruments, certificates, Opinions of Counsel and documentation as Lender and, if the Loan is the subject of a Securitization, the Rating Agencies shall reasonably request in order to preserve, confirm or secure the Liens and security granted to Lender by the Loan Documents, including any amendments, modification or supplements to any of the Loan Documents and partial release endorsements to the Title Policy.
(viii) Borrower shall pay for any and all reasonable out of pocket costs and expenses incurred in connection with any proposed release, including Lender’s reasonable attorneys’ fees and disbursements and all title insurance premiums for any endorsements to the Title Policy reasonably required to be paid to it by Lender in connection with such Release under the Mezzanine Loan Documents;
(D) If required by any Rating Agency, the Borrowers at their sole cost and expense, in connection with any partial defeasance, shall have delivered to Lender, one or more endorsements to the Title Policies delivered to Lender on the date hereof in connection with the Mortgages insuring that, after giving effect to such Release, (i) the Liens created hereby and thereby and insured under the Title Policies are first priority Liens on the respective remaining Properties subject only to the Permitted Encumbrances applicable to the remaining Properties and (ii) that the Title Policies remain in full force and effect and unaffected by such Release;
(E) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) shall be equal to or greater than the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) in effect at Closing, or immediately prior to the Release, whichever is greater;
(F) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 of any proposed Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance of the Loan except pursuant to a total defeasance;
(G) The Borrowers shall pay all reasonable out-of-pocket costs and expenses (including, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursements) incurred by Lender, Servicer, and any custodian employed by Lender or Servicer, in connection with the Release; and
(Hix) Immediately following such Property ReleasePrior to the Release Date, each released Property will be owned Borrower shall deliver to Lender evidence reasonably satisfactory to Lender that all amounts owing by a Person other than the Borrowers, except as otherwise permitted Borrower to any parties in connection with any full or partial defeasance of the Loan in accordance with the terms and conditions of the Note. Upon satisfaction of the above conditions, Lender shall effectuate the following (hereinafter referred to as a "PROPERTY RELEASE"): the security interest of Lender under the Mortgage and other Loan Documents transaction relating to each released the proposed Property shall be released and Lender will execute and deliver any agreements reasonably requested by the Borrowers to release and terminate Release have been paid in full, or reassign, are simultaneously paid in full at the Borrowers' option, the Mortgage, the applicable Assignment of Leases, and financing statements as to each released Property; provided, that such release and termination Release Date or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest adequate reserves therefor are established by Borrower in the Mortgage relating to a released Property all references herein to the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein cash with respect to indemnities. In addition, promptly after consummation contingent or other liabilities that may arise out of any such Property Release and Lender's receipt of the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the Borrowerstransaction.
Appears in 2 contracts
Samples: Loan and Security Agreement (KBS Real Estate Investment Trust, Inc.), Loan and Security Agreement (American Financial Realty Trust)
Release of Properties. On Borrower shall have the right to obtain a release of one or more occasions, of the Borrowers may obtain the release Individual Properties (each, a "RELEASE"Property Release and such Individual Property being a Release Property) of one or more Properties in whole, but not in part, from the Lien of the Security Instrument (1) at any time with respect to the Designated Release Properties and (2) at any time following the expiration of the Defeasance Lockout Period with respect to any Individual Property that is not a Designated Release Property, provided that in either case all of the following conditions are satisfied:
(i) Borrower delivers irrevocable notice of such Property Release (a Property Release Notice) no less than thirty (30) days prior to the proposed date of such Property Release (the Release Date), provided that no Release Date for an Individual Property that is not a Designated Release Property shall occur prior to the expiration of the Defeasance Lockout Period. In no event shall a Property Release occur (and Lender shall have no obligation to release any Individual Property) on a date that is not a Release Date;
(ii) On such Release Date, concurrently with Lender’s release of such Release Property, (1) if such Release Property is a Designated Release Property and the Release Date occurs prior to the expiration of the Limited Prepayment Period, Borrower repays a portion of the Principal Amount equal to the amount of the Release Price applicable Mortgage(sto such Release Property, together with the accrued and unpaid interest thereon, the Yield Maintenance Premium (as defined in the Note) and the amount of the Release Price and all other fees and expenses required to be paid in connection with a partial or total defeasance of the Loan subject therewith pursuant to the conditions terms of the Note and subject to or (2) if such Release Property is not a Designated Release Property or the satisfaction Release Date occurs following the expiration of the following conditions:
(A) Limited Prepayment Period, Borrower satisfies the Defeasance requirements pursuant to Article XI with respect to such Release Property, including, without limitation, providing Lender shall have received from with Defeasance Collateral that satisfies the Borrowers at least fifteen (15) days prior written notice of the date proposed for Defeasance Collateral Requirement with respect to such release (the "RELEASE DATE") which notice is revocableRelease Property;
(Biii) No Event of Default shall have occurred and be is then continuing as of on the date of such notice on which Borrower delivers the Property Release Notice and on the Release Date;
(Civ) On Borrower shall submit to Lender not less than fifteen (15) days prior to the date proposed Release Date, a release of Liens (and related Loan Documents) for such Release, the Borrowers shall defease all or each applicable Release Property (for execution by Lender) in a portion of the Loan by delivering a Defeasance Deposit (as defined form appropriate in the Note) applicable state and otherwise satisfactory to Lender in an amount necessary its reasonable discretion and all other documentation Lender reasonably requires to pay all Scheduled Defeasance Payments be delivered by Borrower in connection with such release (as defined in the Notecollectively, Release Instruments) for the entire principal amount Release Property (for execution by Lender) together with an Officer’s Certificate certifying that (1) the Release Instruments are in compliance with all Legal Requirements, (2) the release to be effected will not violate the terms of this Agreement, (3) the release to be effected will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan in the case of a total defeasance, or in the case of a partial defeasance, relating Documents with respect to the Release Price of each Property Individual Properties and other collateral not being released and (together with all accrued and unpaid interest on 4) the principal amount being so defeased), and such defeasance shall be undertaken requirement described in accordance with the terms and conditions of the Note, and Mezzanine Lender shall have received all amounts required to be paid to it paragraph (vii) below is satisfied in connection with such Release under (together with calculations demonstrating the Mezzanine Loan Documentssame in reasonable detail);
(Dv) If required by Lender shall have received evidence reasonably acceptable to Lender that (1) the Released Property shall constitute a separate conveyable legal parcel in accordance with the subdivision map act or the equivalent thereof in the jurisdiction of the applicable Release Property or other relevant granted government approvals in such jurisdiction; (2) to the extent any Rating Agencyeasements benefitting or burdening such Released Property are necessary or appropriate for the use or operation of the other Individual Properties that are not subject to the Property Release (such remaining Individual Properties, the Borrowers at their sole cost and expenseRemaining Property), in connection with any partial defeasance, such easements shall have delivered been granted or reserved prior to or at the time of the release or reconveyance of such Released Parcel and shall have been approved by Lender, one which approval shall not be unreasonably withheld or more delayed; (3) at the time of, but not prior to, any Property Release, each Released Property shall be transferred to a person or entity that does not result in a breach of Borrower’s obligation to be a Single Purpose Entity; and (4) if the Released Property is less than an entire Individual Property, (A) the Remaining Property shall remain legal parcels in compliance in all material respects with all Legal Requirements, zoning, subdivision, land use and other applicable laws and regulations, (B) Lender shall have received satisfactory evidence that any tax, bond or assessment that constitutes a lien against the Release Property has (i) prior to such Property Release, been properly allocated between the Released Property and the Remaining Property and (ii) after such Property Release, will be properly assessed against the Release Property and the Remaining Property separately; and (C) Lender shall have received such endorsements to the Title Policies delivered to Policy (or substantially equivalent assurance) for the applicable Remaining Property as Lender on the date hereof in connection with the Mortgages insuring that, after giving effect to such Release, may reasonably require confirming continuing title insurance and that (i) the Liens created hereby and thereby and insured under the Title Policies are Security Instrument constitutes a first priority Liens lien (subject to Permitted Encumbrances) on the respective remaining Properties subject only to Remaining Property after the Permitted Encumbrances applicable to the remaining Properties and Property Release, (ii) that the Title Policies remain in full force Remaining Property constitutes a separate tax lot or tax lots and effect and unaffected by such Release;
(Eiii) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) shall be equal to or greater than the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) in effect at Closing, or immediately prior to the Release, whichever is greater;
(F) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 of any Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance of the Loan except pursuant to a total defeasance;
(G) The Borrowers shall pay all reasonable out-of-pocket costs and expenses (including, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursements) incurred by Lender, Servicer, and any custodian employed by Lender or Servicer, in connection with the Release; and
(H) Immediately following such Property Release, each released Property will be owned by a Person other than the Borrowers, except as otherwise permitted in connection with any full or partial defeasance of the Loan in accordance with the terms and conditions of the Note. Upon satisfaction of the above conditions, Lender shall effectuate the following (hereinafter referred to as a "PROPERTY RELEASE"): the security interest of Lender under the Mortgage and other Loan Documents relating to each released Property shall be released and Lender will execute and deliver any agreements reasonably requested by the Borrowers to release and terminate or reassign, at the Borrowers' option, the Mortgage, the applicable Assignment of Leases, and financing statements as to each released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage relating to a released Property all references herein to the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. In addition, promptly after consummation of any such Property Release shall not result in the Remaining Property ceasing to comply in all material respects with all applicable Legal Requirements, zoning, land use and Lender's receipt of the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the Borrowerssubdivision laws.
Appears in 2 contracts
Samples: Loan and Security Agreement (KBS Real Estate Investment Trust, Inc.), Loan and Security Agreement (American Financial Realty Trust)
Release of Properties. On one or more occasions, the Borrowers may obtain the release (each, a "RELEASE") of one or more Properties from the Lien of the applicable Mortgage(s) in connection with a partial or total defeasance prepayment of a portion of the Loan subject to the conditions of the Note and subject to the satisfaction of the following conditions:
(A) Lender shall have received from the Borrowers at least fifteen (15) days prior written notice of the date proposed for such release (the "RELEASE DATE") which notice is revocable;
(B) No Event of Default shall have occurred and be continuing as of the date of such notice and the Release Date;
(C) On Lender shall have received from the Borrowers on the date proposed for such Release, the Borrowers shall defease all or Release Price (together with, except in connection with a portion Release of a Sale Property, the applicable Prepayment Consideration and any prepayment consideration due pursuant to the terms of the Mezzanine Loan by delivering a Defeasance Deposit (as defined in the Note) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the NoteDocuments) for deposit into the entire principal amount of the Loan in the case of a total defeasance, or in the case of a partial defeasance, relating to the Release Price of each Property being released (together with all accrued Lock Box Account and unpaid interest on the principal amount being so defeased), and such defeasance shall be undertaken disbursement in accordance with the terms and conditions of the NoteCash Management Agreement, and following such disbursement, Lender shall have received Mortgage Lender's Percentage of the Release Price and Mezzanine Lender shall have received all amounts required to be paid to it in connection with such Mezzanine Lender's Percentage of the Release under the Mezzanine Loan DocumentsPrice;
(D) If required by any Rating Agency, the Borrowers at their sole cost and expense, in connection with any partial defeasance, shall have delivered to Lender, one or more endorsements to the Title Policies delivered to Lender on the date hereof in connection with the Mortgages insuring that, after giving effect to such Release, (i) the Liens created hereby and thereby and insured under the Title Policies are first priority Liens on the respective remaining Properties subject only to the Permitted Encumbrances applicable to the remaining Properties and (ii) that the Title Policies remain in full force and effect and unaffected by such Release;
(E) Immediately following any Release in connection with any partial defeasance, (other than a Release of a Sale Property) both the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) shall be equal to or greater than the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) in effect at Closing, or immediately prior to the Release, whichever is greater;
(F) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 of any Property or Properties (other than the Sale Properties) which individually, or in the aggregate (with all Releases of Properties other than the Sale Properties since the Closing Date), have an aggregate Aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance Loan Amount (exclusive of the Allocated Loan except pursuant Amount with respect to a total defeasanceany Sale Property);
(G) The Borrowers shall pay all reasonable out-of-pocket costs and expenses (including, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursements) incurred by Lender, Servicer, and any custodian employed by Lender or Servicer, in connection with the Release; and
(H) Immediately following such Property Release, each released the Released Property will be owned by a Person other than the Borrowers, except as otherwise permitted in connection with any full or partial defeasance of the Loan in accordance with the terms and conditions of the Note. Upon satisfaction of the above conditions, Lender shall effectuate the following (hereinafter referred to as a "PROPERTY RELEASE"): the security interest of Lender under the Mortgage and other Loan Documents relating to each released the Released Property shall be released and Lender will execute and deliver any agreements reasonably requested by the Borrowers to release and terminate or reassign, at the Borrowers' option, the Mortgage, the applicable Assignment of Leases, and financing statements as to each the released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any the released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each the released 100 Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage relating to a the released Property all references herein to the Mortgage relating to such the released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. In addition, addition promptly after consummation of any such Property Release and Lender's receipt of the Defeasance CollateralRelease Price and any other sums payable to Lender, any and all Reserves designated as applicable to each the released Property held by or on behalf of Lender shall be returned to the Borrowers.
Appears in 2 contracts
Samples: Loan and Security Agreement (Lodgian Inc), Loan and Security Agreement (Lodgian Inc)
Release of Properties. On one or more occasions, the Borrowers may obtain the release (each, a "RELEASE") of one (1) or more of the Properties from the Lien of the applicable Mortgage(s) Deed of Trust in connection with (x) a partial sale of the applicable Property or total defeasance Properties to one or more Persons which are not Related Persons of the Borrowers or Guarantor, (y) a Release necessary to prevent an Uncured Franchise Default, or (z) a Release necessary to enable the Borrowers to comply with the restrictions set forth in Section 5.13(D), and prepayment of all or a portion of the Loan subject to the conditions of the Note and subject to the satisfaction of the following conditions:
(A) Lender shall have received from the Borrowers at least fifteen (15) days prior written notice of the date proposed for such release (the "RELEASE DATE") which notice is revocable;
(B) No Event of Default shall have occurred and be continuing as of the date of such notice and the Release Date;
(C) On Lender shall have received from the Borrowers on the date proposed for such Release, the Borrowers shall defease all or a portion of Release Price, for deposit into the Loan by delivering a Defeasance Deposit (as defined in the Note) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the Note) for the entire principal amount of the Loan in the case of a total defeasance, or in the case of a partial defeasance, relating to the Release Price of each Property being released (together with all accrued Lock Box Account and unpaid interest on the principal amount being so defeased), and such defeasance shall be undertaken disbursement in accordance with the terms and conditions of the NoteCash Management Agreement, and following such disbursement, Lender shall have received Mortgage Lender's Percentage of the Release Price and Mezzanine Lender shall have received all amounts required to be paid to it in connection with such Mezzanine Lender's Percentage of the Release under the Mezzanine Loan DocumentsPrice;
(D) If required by any Rating Agency, the The Borrowers at their sole cost and expense, in connection with any partial defeasance, shall have delivered to Lender, one or more endorsements to the Title Policies delivered to Lender on the date hereof in connection with the Mortgages Deeds of Trust insuring that, after giving effect to such Release, (i) the Liens created hereby and thereby and insured under the Title Policies are first priority Liens on the respective remaining Properties subject only to the Permitted Encumbrances applicable to the remaining Properties and (ii) that the Title Policies remain in full force and effect and unaffected by such Release;
(E) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) shall be equal to or greater than the Debt Service Coverage Ratio and the Debt Yield in effect immediately prior to the Release (based upon a trailing twelve (12) month period) in effect at Closing, or immediately prior to the Release, whichever is greater);
(F) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 of any Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance of the Loan except pursuant to a total defeasance;
(G) The Borrowers shall pay all reasonable out-of-pocket costs and expenses (including, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursements) incurred by Lender, Servicer, and any custodian employed by Lender or Servicer, in connection with the Release; and
(HG) Immediately following such Property Release, each released the Released Property will be owned by a Person other than the Borrowers, except as otherwise permitted in connection with any full or partial defeasance of the Loan in accordance with the terms and conditions of the Note. Upon satisfaction of the above conditions, Lender shall effectuate the following (hereinafter referred to as a "PROPERTY RELEASE"): the security interest of Lender under the Mortgage Deed of Trust and other Loan Documents relating to each released the Released Property shall be released and Lender will execute and deliver any agreements reasonably requested by the Borrowers to release and terminate or reassign, at the Borrowers' option, the MortgageDeed of Trust, the applicable Assignment of Leases, and financing statements as to each the released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage Deed of Trust or the other Loan Documents relating to any the released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate 100 solely to each the released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage Deed of Trust relating to a the released Property all references herein to the Mortgage Deed of Trust relating to such the released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. In addition, promptly after consummation of any such Property Release and Lender's receipt of the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the Borrowers.
Appears in 2 contracts
Samples: Loan and Security Agreement (Lodgian Inc), Loan and Security Agreement (Lodgian Inc)
Release of Properties. On one or more occasionsFrom time to time Borrower may request, the Borrowers may obtain the release upon not less than thirty (each, a "RELEASE") of one or more Properties from the Lien of the applicable Mortgage(s) in connection with a partial or total defeasance of the Loan subject to the conditions of the Note and subject to the satisfaction of the following conditions:
(A) Lender shall have received from the Borrowers at least fifteen (1530) days prior written notice to Lender that a Borrowing Base Property be released from the Liens created by the Security Instrument applicable thereto, which release ("Property Release") shall be effected by Lender if Lender determines all of the date proposed for such release (the "RELEASE DATE") which notice is revocable;
(B) No Event of Default shall have occurred and be continuing following conditions are satisfied as of the date of such notice and the Release Date;Property Release:
(Ca) On the date proposed for such Release, the Borrowers shall defease all No Default or a portion Event of the Loan by delivering a Defeasance Deposit (as defined in the Note) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the Note) for the entire principal amount of the Loan in the case of a total defeasance, Default exists or in the case of a partial defeasance, relating to the Release Price of each Property being released (together with all accrued and unpaid interest on the principal amount being so defeased), and such defeasance shall be undertaken in accordance with the terms and conditions of the Note, and Mezzanine Lender shall have received all amounts required to be paid to it in connection with such Release under the Mezzanine Loan Documents;
(D) If required by any Rating Agency, the Borrowers at their sole cost and expense, in connection with any partial defeasance, shall have delivered to Lender, one or more endorsements to the Title Policies delivered to Lender on the date hereof in connection with the Mortgages insuring that, will exist immediately after giving effect to such Release, Property Release and the reduction of the Borrowing Base by reason of the release of such Property;
(b) The Borrower shall have delivered to Lender a Borrowing Base Certificate demonstrating on a pro forma basis that the sum of (i) the Liens created hereby and thereby and insured under the Title Policies are first priority Liens on the respective remaining Properties subject only to the Permitted Encumbrances applicable to the remaining Properties and face amount of all undrawn letters of credit, plus (ii) that the Title Policies remain in full force amount of all drawings under letters of credit which have not been reimbursed by Borrower to lender, plus (iii) the amount of all outstanding Advances, will not exceed the Maximum Availability after giving effect to such request and effect and unaffected by any prepayment to be made and/or the acceptance of any Property as an additional or replacement Borrowing Base Property to be given concurrently with such Releaserequest;
(Ec) Immediately following The Borrower shall have paid any Release amounts as are required in order to ensure that sum of (i) the face amount of all undrawn letters of credit, plus (ii) the amount of all drawings under letters of credit which have not been reimbursed by Borrower to lender, plus (iii) the amount of all outstanding Advances, does not exceed, the Maximum Availability after giving effect to such release;
(d) The Borrower shall have delivered to Lender all documents and instruments reasonably requested by Lender in connection with any partial defeasance, both the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) shall be equal to or greater than the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) in effect at Closing, or immediately prior to the Release, whichever is greater;
(F) Notwithstanding the foregoing, the Borrowers may not obtain the such Property Release under this Section 11.4 of any Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance of the Loan except pursuant to a total defeasance;
(G) The Borrowers shall pay all reasonable out-of-pocket costs and expenses (including, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursementsthe following:
(i) incurred the quitclaim deed or other instruments to be used to effect such Property Release if the Property is being sold or transferred; and
(ii) If required by Lender, Serviceran appropriate partial release or modification endorsement to the title insurance policies in effect with respect to the remaining Borrowing Base Properties;
(e) Lender shall have recalculated the Borrowing Base; and
(f) Borrower shall also cause Guarantor and each Permitted Subsidiary to execute and deliver such consents to such release as Lender may require and request.
(g) Borrower shall have paid to Lender all costs and expenses, including attorneys' fees, title insurance fees, and any custodian employed costs and expenses incurred by Lender or Servicer, in connection with the Release; and
(H) Immediately following such Property Release, each released Property will be owned by a Person other than the Borrowers, except as otherwise permitted in connection with any full or partial defeasance of the Loan in accordance with the terms and conditions of the Note. Upon satisfaction of the above conditions, Lender shall effectuate the following (hereinafter referred to as a "PROPERTY RELEASE"): the security interest of Lender under the Mortgage and other Loan Documents relating to each released Property shall be released and Lender will execute and deliver any agreements reasonably requested by the Borrowers to release and terminate or reassign, at the Borrowers' option, the Mortgage, the applicable Assignment of Leases, and financing statements as to each released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage relating to a released Property all references herein to the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. In addition, promptly after consummation of any such Property Release and Lender's receipt consideration of the Defeasance CollateralBorrower's request therefor. Except as set forth in this Section 4.2, any and all Reserves designated as applicable to each released no Borrowing Base Property held by or on behalf of Lender shall be returned to released from the BorrowersLiens created by the Security Instrument applicable thereto.
Appears in 2 contracts
Samples: Revolving Line of Credit Agreement (Extra Space Storage Inc.), Revolving Line of Credit Agreement (Extra Space Storage Inc.)
Release of Properties. On one or more occasionsFrom time to time the Borrower may request, the Borrowers may obtain the release (each, a "RELEASE") of one or more Properties from the Lien of the applicable Mortgage(s) in connection with a partial or total defeasance of the Loan subject to the conditions of the Note and subject to the satisfaction of the following conditions:
(A) Lender shall have received from the Borrowers at least fifteen (15) upon not less than 10 days prior written notice to the Administrative Agent (or such shorter period as may be acceptable to the Administrative Agent in its sole discretion), that a Borrowing Base Asset be no longer considered a Borrowing Base Asset, which release (a “Property Release”) shall be effected by the Administrative Agent if the Administrative Agent determines all of the date proposed for such release (the "RELEASE DATE") which notice is revocable;
(B) No Event of Default shall have occurred and be continuing following conditions are satisfied as of the date of such notice Property Release:
(a) No Default or Event of Default exists or will exist immediately after giving effect to such Property Release and the Release Datereduction in the Borrowing Base by reason of such Property Release;
(Cb) On The representations and warranties made or deemed made by the date proposed for such Release, the Borrowers shall defease all or a portion of Borrower and each other Loan Party in the Loan by delivering Documents to which any of them is a Defeasance Deposit party, are true and correct in all material respects (as defined in the Note) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the Note) for the entire principal amount of the Loan except in the case of a total defeasancerepresentation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) immediately prior to and after giving effect to such Property Removal with the same force and effect as if made on and as of such date except to the extent (i) that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a partial defeasancerepresentation or warranty qualified by materiality, relating to the Release Price in which case such representation or warranty shall have been true and correct in all respects) on and as of each Property being released (together with all accrued and unpaid interest on the principal amount being so defeasedsuch earlier date), and such defeasance shall be undertaken (ii) of changes in accordance with factual circumstances resulting from transactions permitted by the terms and conditions of the Note, and Mezzanine Lender shall have received all amounts required to be paid to it in connection with such Release under the Mezzanine Loan Documents;
(Dc) If required by any Rating Agency, the Borrowers at their sole cost and expense, in connection with any partial defeasance, The Borrower shall have delivered to Lenderthe Administrative Agent a Borrowing Base Certificate and Compliance Certificate demonstrating on a pro forma basis, one or more endorsements and the Administrative Agent shall have determined to the Title Policies delivered to Lender on the date hereof in connection with the Mortgages insuring thatits reasonable satisfaction, that after giving effect to such Releaserequest and any prepayment of the Loans or other Indebtedness to be made and/or the acceptance of any Property, (i) Mortgage Receivable or cash or cash equivalents as an additional or replacement Borrowing Base Asset to be given concurrently with such request, that the Liens created hereby and thereby and insured under Borrower will be in compliance with the Title Policies are first priority Liens on the respective remaining Properties subject only covenants set forth in Section 10.1. after giving effect to the Permitted Encumbrances applicable to the remaining Properties and (ii) that the Title Policies remain in full force and effect and unaffected by such Release;
(E) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) shall be equal to or greater than the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) in effect at Closing, or immediately prior to the Release, whichever is greater;
(F) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 of any Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance of the Loan except pursuant to a total defeasance;
(G) The Borrowers shall pay all reasonable out-of-pocket costs and expenses (including, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursements) incurred by Lender, Servicer, and any custodian employed by Lender or Servicer, in connection with the Release; and
(Hd) Immediately following After giving effect to such Property Release, each released the number of Borrowing Base Properties shall be at least 50, and the aggregate Unencumbered Eligible Property will Values of such Borrowing Base Properties shall be owned at least $200,000,000. Delivery by the Borrower to the Administrative Agent of a Person other than request for a Property Release shall constitute a representation by the Borrowers, except Borrower that the matters set forth in the immediately preceding clauses (a) and (b) (both as otherwise permitted in connection with any full or partial defeasance of the Loan in accordance with the terms and conditions date of the Note. Upon satisfaction giving of such request and as of the above conditions, Lender shall effectuate date of the following (hereinafter referred to as a "PROPERTY RELEASE"): the security interest effectiveness of Lender under the Mortgage such request) are true and other Loan Documents relating to each released Property shall be released and Lender will execute and deliver any agreements reasonably requested by the Borrowers to release and terminate or reassign, at the Borrowers' option, the Mortgage, the applicable Assignment of Leases, and financing statements as to each released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage relating to a released Property all references herein to the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein correct with respect to indemnities. In addition, promptly after consummation of any such Property Release and Lender's receipt of the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the Borrowersrequest.
Appears in 2 contracts
Samples: Term Loan Agreement (Broadstone Net Lease Inc), Term Loan Agreement (Broadstone Net Lease Inc)
Release of Properties. On one or more occasions, the (a) Borrowers may obtain the in connection with arm's length sale of a Property to an unrelated third party or a refinancing provided by NACC, from time to time, provided no Default or Event of Default exists hereunder request in writing a release (each, a "RELEASE") of one or more Properties any Property from the Lien of the Mortgage on such Property and the applicable Mortgage(s) Borrower in connection with a partial or total defeasance prepayment by an amount (the "RELEASE PRICE") equal to the greater of (1) 100% of the Allocated Loan subject to Amount for such Property (and all properties held by the conditions applicable Borrower) or (2) 100% of the Note and subject to proceeds of sale of the Property net of customary sales expenses consistent with sales of similar properties (or in the case of a refinancing by NACC, 100% of the refinancing proceeds net of customary refinancing expenses) Lender shall, upon satisfaction of all of the following terms and conditions, permit a release of the Lien of the Mortgage on such Property:
(Ai) Borrowers shall have prepaid the Loan by the amount of the Release Price and the Property shall no longer be owned by one of the Borrowers;
(ii) Lender shall have received from Borrowers evidence in form and substance satisfactory to Lender that the Borrowers Debt Service Coverage Ratio (computed based on the amount of the Loan after application of the Release Price and the Net Operating Income of the remaining Properties) immediately following the release of such Property is at least fifteen equal to the lesser of (15A) the Initial DSCR and (B) the Debt Service Coverage Ratio immediately prior to the release of such Property, accompanied by an Officer's Certificate stating that the statements, calculations and information comprising such evidence are true and correct and complete in all respects;
(iii) There shall exist no Default or Event of Default hereunder or after application of the Release Price;
(iv) Borrowers shall have given at least thirty days prior written notice of the contemplated prepayment; and
(v) If the member or general partner of the Borrower being released is also a member or general partner of another Borrower, Borrowers shall have taken such steps as may be required to assure that of the release contemplated hereby does not affect the bankruptcy remote status of any of the remaining Borrowers.
(b) In connection with the release of the Lien of a Mortgage, Borrowers shall submit to Lender, not less than fourteen (14) days prior to the date proposed for on which such release is sought, a release of Lien (the "RELEASE DATE") which notice is revocable;
(B) No Event of Default shall have occurred and be continuing as of the date of such notice and the Release Date;
(C) On the date proposed for such Release, the Borrowers shall defease all or a portion of the related Loan by delivering a Defeasance Deposit (as defined in the Note) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the NoteDocuments) for the entire principal amount of the Loan applicable Property (for execution by Lender) in a form appropriate in the case of a total defeasance, or state in the case of a partial defeasance, relating which such Property is located and satisfactory to the Release Price of each Property being released (together with Lender in its reasonable discretion and all accrued and unpaid interest on the principal amount being so defeased), and such defeasance shall be undertaken in accordance with the terms and conditions of the Note, and Mezzanine other documentation Lender shall have received all amounts required requires to be paid to it delivered by Borrowers in connection with such Release under the Mezzanine Loan Documents;release, together with an Officer's Certificate certifying that such documentation is in compliance with all Legal Requirements.
(Dc) If required by any Rating Agency, the Borrowers at their sole cost and expense, in connection with any partial defeasance, shall have delivered to Lender, one or more endorsements to the Title Policies delivered to Lender on the date hereof in connection Simultaneously with the Mortgages insuring that, after giving effect to such Release, (i) release of a Property from the Liens created hereby and thereby and insured under the Title Policies are first priority Liens on the respective remaining Properties subject only to the Permitted Encumbrances applicable to the remaining Properties and (ii) that the Title Policies remain in full force and effect and unaffected by such Release;
(E) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio and the Debt Yield (based upon lien of a trailing twelve (12) month period) shall be equal to or greater than the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) in effect at Closing, or immediately prior to the Release, whichever is greater;
(F) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 of any Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance of the Loan except Mortgage pursuant to a total defeasance;
(G) The Borrowers shall pay all reasonable out-of-pocket costs and expenses (including, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursements) incurred by Lender, Servicer, and any custodian employed by Lender or Servicer, in connection with the Release; and
(H) Immediately following such Property Release, each released Property will be owned by a Person other than the Borrowers, except as otherwise permitted in connection with any full or partial defeasance of the Loan in accordance with the terms and conditions of the Note. Upon satisfaction of the above conditionsthis Section, Lender shall effectuate the following (hereinafter referred release that portion of all cash or other accounts maintained pursuant to as a "PROPERTY RELEASE"): the security interest of Lender under the Mortgage and other Loan Documents relating to each released Property shall be released and Lender will execute and deliver any agreements reasonably requested by the Borrowers to release and terminate or reassign, at the Borrowers' option, the Mortgage, the applicable Assignment of Leases, and financing statements as to each released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage relating to a released Property all references herein to the Mortgage this Agreement relating to such released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. In addition, promptly after consummation of any such Property Release and Lender's receipt of the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the BorrowersProperty.
Appears in 1 contract
Release of Properties. On one or more occasions, the Borrowers may obtain the release (each, a "RELEASE") of one or more Properties from the Lien of the applicable Mortgage(s) in connection with a partial or total defeasance of the Loan subject to the conditions of the Note and subject to the satisfaction of the following conditions:
(A) Lender shall have received from the Borrowers Borrower at least fifteen (15) days Business Days' (or at least five (5) Business Days' in the case of a Defaulted Property Release) prior written notice of the date proposed for such release (the "RELEASE DATERelease Date") which notice is revocable;); ------------
(B) No Event of Default shall have occurred and be continuing as of the date of such notice and the Release DateDate (except for any Event of Default under Section 8.1(E) relating to the Property to be released which Borrower is seeking to cure by effecting a Defaulted Property Release);
(C) On the date proposed for such Release, the Borrowers Borrower shall defease all or prepay a portion of the Loan by delivering a Defeasance Deposit (as defined in the Note) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the Note) for the entire principal amount of the Loan in the case of a total defeasance, or in the case of a partial defeasance, relating to the Release Price of each the Property being released (together with all accrued and unpaid interest on the principal amount being so defeasedprepaid through the end of such Interest Accrual Period and any Prepayment Consideration then due), and such defeasance shall be undertaken in accordance with the terms and conditions of the Note, and Mezzanine Lender shall have received all amounts required to be paid to it in connection with such Release under the Mezzanine Loan Documents;
(D) Borrower shall have delivered to Lender an Officer's Certificate, dated the Release Date, confirming the matters referred to in clause (B) above, certifying that the provisions of clause (C) above have been complied with and certifying that all conditions precedent for such release contained in this Loan Agreement have been complied with;
(E) If required by any Rating AgencyLender, the Borrowers Borrower at their its sole cost and expense, in connection with any partial defeasance, shall have delivered to Lender, one or more endorsements to the Title Policies delivered to Lender on the date hereof in connection with the Mortgages insuring that, after giving effect to such Releaserelease, (i) the Liens created hereby and thereby and insured under the Title Policies are first priority Liens on the respective remaining Properties subject only to the Permitted Encumbrances applicable to the remaining Properties and (ii) that the Title Policies remain in full force and effect and unaffected by such Releaserelease;
(EF) Immediately following any Release in connection with any partial defeasanceAfter giving effect to such proposed Property Release, both the Debt Service Coverage Ratio and for the Debt Yield remaining Properties (calculated based upon a trailing the ratio of the Pro Forma Net Operating Income of the remaining Properties for the twelve (12) month periodperiod ended as of the date of the most recent quarterly or annual operating statements for the Properties required to be delivered under Section 5.1(A)(iv) shall to the debt service which would be equal due under the Note for the twelve (12) month period after the Release Date calculated based upon the assumptions set forth in the definition of "Debt Service Coverage Ratio" and after giving effect to or the partial prepayment of the Note required under Section 11.4(C)) would be not less than the greater than of (a) the Debt Service Coverage Ratio and for all of the Debt Yield (based upon a trailing Properties for the aforesaid most recent twelve (12) month period) in effect at Closing, or immediately period prior to the Release, whichever is greatergiving effect to such release and (b) 2.40:1.0;
(G) Lender and the Rating Agencies shall have received from Borrower with respect to the matters referred to in clause (F), (i) statements of the Pro Forma Net Operating Income and debt service (both on a consolidated basis and separately for the applicable Property(ies) to be released) for the applicable measuring period, and (ii) based on the foregoing statements of Pro Forma Net Operating Income and debt service, calculations of the Debt Service Coverage Ratio both with and without giving effect to the proposed release, and (iii) calculations of the ratios referred to in such clause (F), accompanied by an Officer's Certificate stating that such statements, calculations and information are true, correct, and complete in all material respects;
(H) Notwithstanding the foregoingabove, the Borrowers Borrower may not obtain the Release release under this Section 11.4 of any Property or Properties which individuallythe aggregate initial Allocated Loan Amount(s) of which, individually or in the aggregate (with all Releases since the Closing Date)aggregate, have an aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance of the Loan except pursuant to a total defeasanceexceed $67,500,000;
(GI) The Borrowers Notwithstanding the above, Borrower may not obtain the release under this Section 11.4 of (i) the Sheridan Medical Center, Kenosha, Wisconsin, without also obtaining the release of the Woodstock Health and Rehabilitation Center, Kenosha, Wisconsin or (ii) the Xxxxxx Healthcare Center, San Francisco, California, without also obtaining the release of the Nob Hill Healthcare Center, San Francisco, California;
(J) Borrower shall pay all reasonable out-of-pocket costs and expenses (including, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursements) incurred by Lender, Servicer, and any custodian employed by Lender or Servicer, in connection with the Releaserelease;
(K) Borrower shall be required to consummate any Defaulted Property Release within the cure period provided for the cure of the applicable Default under Section 8.1 (or within thirty (30) days after notice from Lender in the case of an Event of Default arising from a breach of a representation or warranty under Section 8.1(E)); and
(HL) Immediately following If (i) the Allocated Loan Amount for the Property or Properties to be released in any transaction exceeds five percent (5%) of the Principal Balance of the Loan or (ii) the sum of the Allocated Loan Amount for the Property proposed to be released together with the Allocated Loan Amount(s) for all Properties theretofore released under this Section 11.4 shall exceed ten percent (10%) of the Principal Balance of the Loan, Borrower shall have obtained and delivered to Lender a Rating Confirmation with respect to such Property Release, each released Property will be owned by a Person other than . Upon or after the Borrowers, except as otherwise permitted in connection with any full or partial defeasance delivery of the Loan Release Price in accordance with the terms Section 11.4(C) above and conditions of the Note. Upon satisfaction of the above conditions, Lender shall effectuate the following (hereinafter referred to as a "PROPERTY RELEASE"): Property Release by doing the following: the security interest of Lender under in the Mortgage and other Loan Documents relating to each the released Property shall be released and Lender will execute and deliver any agreements reasonably requested by the Borrowers Borrower to release and terminate or reassign, at the Borrowers' Borrower's option, the Mortgage, the applicable Assignment of Leases, and financing statements Mortgage as to each the released Property; provided, that such release and -------- termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any the released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers); provided, further, that upon the release and -------- ------- termination or reassignment of Lender's security interest in the Mortgage relating to a the released Property all references herein to the Mortgage relating to such the released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. At Borrower's request and upon satisfaction of all of the conditions to a Property Release set forth in this Section 11.4 (other than payment of the Release Price by Borrower), Lender will execute and deliver the documents and agreements required to effect such Property Release as set forth above, in escrow with counsel selected by Lender or with a reputable national title insurance company selected by Borrower and reasonably acceptable to Lender, pursuant to an escrow agreement in form and substance reasonably acceptable to Lender requiring such escrow agent to hold such documents and agreements in escrow until Lender has received payment in full of the Release Price and any and all other amounts due to Lender in connection with such Property Release. Upon the consummation of the Property Release, Borrower shall be required to execute, deliver and record in the applicable real estate records a deed transferring and conveying all of Borrower's right, title and interest in and to the released Property to an Affiliate of Borrower or a third Person and execute, deliver and record (as applicable) such additional agreements and instruments as may be necessary to effect the transfer and assignment to such transferee of the Property of all of Borrower's right, title and interest in and to any and all personal property and agreements related to the Property. In addition, promptly after consummation of any such Property Release Borrower and Lender's receipt Lessee shall enter into an amendment of the Defeasance CollateralMaster Lease, any in form and all Reserves designated as applicable substance reasonably satisfactory to each released Lender, in order to effectuate the severance of the Property held by or on behalf of Lender shall be returned to the Borrowerstherefrom.
Appears in 1 contract
Release of Properties. On one (a) If the Lessee shall at any time (i) purchase any Affected Property pursuant to Section 15.1 of the Lease, (ii) exercise its Purchase Option with respect to the Properties, or more occasionsif any or all of the Properties shall be purchased by the Lessee (or its designees) in accordance with the Master Lease, and in each case, the Borrowers may obtain Lessee satisfies each of the obligations and conditions set forth in the Master Lease for the release (eachof a Property therefrom, a "RELEASE") then, upon application of one or more Properties the proceeds of any such sale pursuant to Article VII and all accrued interest, Yield and any other payments due and owing from the Lien Lessee to the Administrative Agent, the Lenders and the Lessor on such date pursuant to the Operative Documents, including without limitation all amounts due and owing pursuant to Article XIII of this Participation Agreement with respect to such Property or Properties purchased by the Lessee or its designee, (i) each such Property shall be released from the Liens created by the Operative Documents (including any Liens created by the Lease Supplement covering such Property, the Mortgage with respect to such Property and the Assignment of Lease and Rent) and the Administrative Agent and the Lessor shall, at the expense of the applicable Mortgage(sLessee, execute and deliver such instruments as the Lessee may reasonably request to effectuate and evidence such releases, and (ii) in connection with a partial or total defeasance of the Loan subject Lessee shall be entitled to the conditions return of the Note and subject to the satisfaction of the following conditions:
(A) Lender shall have received from the Borrowers at least fifteen (15) days prior written notice of the date proposed for such release (the "RELEASE DATE") which notice is revocable;
(B) No Event of Default shall have occurred and be continuing as of the date of such notice and the Release Date;
(C) On the date proposed for such Release, the Borrowers shall defease all or a portion of the Loan by delivering a Defeasance Deposit (as defined Funds held under the Cash Collateral Pledge Agreement equal to the amount in the Note) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the Note) for the entire principal amount excess of the Loan in the case of a total defeasance, or in the case of a partial defeasance, relating to the Release Price of each Property being released (together with all accrued and unpaid interest on the principal amount being so defeased), and such defeasance shall be undertaken in accordance with the terms and conditions of the Note, and Mezzanine Lender shall have received all amounts then required to be paid to it in connection with such Release maintained under the Mezzanine Loan Documents;terms of Section 4 thereof.
(Db) If required In addition, upon the termination of the Commitments of the Lenders and the payment in full of all other amounts owing to the Lenders by the Lessee hereunder or under any Rating Agencyother Operative Document, the Borrowers Properties shall be released from the Liens created by the Mortgages and the Assignment of Lease and Rent. Upon request of either the Lessee or the Lessor following any such release, the Administrative Agent shall, at their the sole cost and expense, in connection with any partial defeasance, shall have delivered to Lender, one or more endorsements to the Title Policies delivered to Lender on the date hereof in connection with the Mortgages insuring that, after giving effect to such Release, (i) the Liens created hereby and thereby and insured under the Title Policies are first priority Liens on the respective remaining Properties subject only to the Permitted Encumbrances applicable to the remaining Properties and (ii) that the Title Policies remain in full force and effect and unaffected by such Release;
(E) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) shall be equal to or greater than the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) in effect at Closing, or immediately prior to the Release, whichever is greater;
(F) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 of any Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) expense of the original principal balance of the Loan except pursuant to a total defeasance;
(G) The Borrowers shall pay all reasonable out-of-pocket costs and expenses (includingLessee, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursements) incurred by Lender, Servicer, and any custodian employed by Lender or Servicer, in connection with the Release; and
(H) Immediately following such Property Release, each released Property will be owned by a Person other than the Borrowers, except as otherwise permitted in connection with any full or partial defeasance of the Loan in accordance with the terms and conditions of the Note. Upon satisfaction of the above conditions, Lender shall effectuate the following (hereinafter referred to as a "PROPERTY RELEASE"): the security interest of Lender under the Mortgage and other Loan Documents relating to each released Property shall be released and Lender will execute and deliver any agreements reasonably requested by to the Borrowers to release and terminate or reassign, at the Borrowers' option, the Mortgage, the applicable Assignment of Leases, and financing statements as to each released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage Lessor or the other Loan Documents relating Lessee, as applicable, such documents as the Lessee or the Lessor shall reasonably request to any released Property (except as contemplated hereby) effectuate and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage relating to a released Property all references herein to the Mortgage relating to evidence such released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. In addition, promptly after consummation of any such Property Release and Lender's receipt of the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the Borrowersrelease.
Appears in 1 contract
Release of Properties. On one or more occasions, the Borrowers may obtain the release (each, a "RELEASE") of one or more Properties from the Lien If any Lessee shall at any time purchase any Property pursuant to Section 15.1 of the applicable Mortgage(s) in connection Lease or exercise its Purchase Option with a partial respect to any Property, or total defeasance if all of the Loan subject to the conditions of the Note and subject to the satisfaction of the following conditions:
(A) Lender shall have received from the Borrowers at least fifteen (15) days prior written notice of the date proposed for such release (the "RELEASE DATE") which notice is revocable;
(B) No Event of Default shall have occurred and be continuing as of the date of such notice and the Release Date;
(C) On the date proposed for such Release, the Borrowers shall defease all or a portion of the Loan by delivering a Defeasance Deposit (as defined in the Note) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the Note) for the entire principal amount of the Loan in the case of a total defeasance, or in the case of a partial defeasance, relating to the Release Price of each Property being released (together with all accrued and unpaid interest on the principal amount being so defeased), and such defeasance Properties shall be undertaken purchased by the Lessees (or their designees) in accordance with the terms Lease, and the Lessees satisfy each of the obligations and conditions set forth in the Lease for the release of a Property therefrom, then, upon application of the Note, proceeds of any such sale pursuant to ARTICLE XII and Mezzanine Lender shall have received all amounts required accrued interest and any other payments due and owing from the Lessees to be paid to it in connection with such Release under the Mezzanine Loan Documents;
(D) If required by any Rating AgencyAdministrative Agent, the Borrowers at their sole cost and expense, in connection with any partial defeasance, shall have delivered to Lender, one or more endorsements to the Title Policies delivered to Lender on the date hereof in connection with the Mortgages insuring that, after giving effect to such Release, (i) the Liens created hereby and thereby and insured under the Title Policies are first priority Liens on the respective remaining Properties subject only to the Permitted Encumbrances applicable to the remaining Properties and (ii) that the Title Policies remain in full force and effect and unaffected by such Release;
(E) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio Lenders and the Debt Yield (based upon a trailing twelve (12) month period) shall be equal to or greater than the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) in effect at ClosingLessor on such date, or immediately prior to the Release, whichever is greater;
(F) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 of any Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance of the Loan except including without limitation pursuant to a total defeasance;
(G) The Borrowers shall pay all reasonable out-of-pocket costs and expenses (includingARTICLE XI of this Participation Agreement, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursements) incurred by Lender, Servicer, and any custodian employed by Lender or Servicer, in connection with the Release; and
(H) Immediately following such Property Release, each released Property will be owned by a Person other than the Borrowers, except as otherwise permitted in connection with any full or partial defeasance of the Loan in accordance with the terms and conditions of the Note. Upon satisfaction of the above conditions, Lender shall effectuate the following (hereinafter referred to as a "PROPERTY RELEASE"): the security interest of Lender under the Mortgage and other Loan Documents relating to each released Property shall be released from the Liens created by the Lease Supplement covering such Property, the Assignment of Leases and Lender will Rents, the Construction Agency Agreement Assignment, the Lessor Mortgage and the Lessor Financing Statements, and the Administrative Agent and the Lessor shall, at the expense of the Company, execute and deliver any agreements reasonably requested by the Borrowers such instruments as are legally required in order to release and terminate or reassign, at the Borrowers' option, the Mortgage, the applicable Assignment of Leases, and financing statements as to each released Property; provided, that effectuate such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage relating to a released Property all references herein to the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnitiesrelease. In addition, promptly after consummation upon the termination of the Commitments of the Lenders and the payment in full of all other amounts owing to the Lenders by the Company and the other Lessees hereunder or under any other Operative Document, the Properties shall be released from the Liens created by the Lease Supplement, the Lessor Mortgage, the Lessor Financing Statements, the Assignment of Leases and Rents and the Construction Agency Agreement Assignment. Upon request of the Company or the Lessor following any such Property Release release, the Administrative Agent shall, at the sole cost and Lender's receipt expense of the Defeasance CollateralCompany, any execute and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned deliver to the BorrowersCompany or the Lessor, as applicable, such documents as the Company or the Lessor shall reasonably request to evidence such releases.
Appears in 1 contract
Samples: Master Lease and Open End Mortgage (Cardinal Health Inc)
Release of Properties. On one From time to time the Borrower may request, upon not less than 10 Business Days’ prior written notice to the Administrative Agent or more occasionssuch shorter period as may be acceptable to the Administrative Agent, that any Borrowing Base Property be released from the Borrowers may obtain Liens created by the Security Documents applicable thereto, which release (each, a "RELEASE"the “Property Release”) of one or more Properties from shall be effected by the Lien of Administrative Agent if the applicable Mortgage(s) in connection with a partial or total defeasance of the Loan subject to the conditions of the Note and subject to the satisfaction Administrative Agent determines all of the following conditions:
(A) Lender shall have received from the Borrowers at least fifteen (15) days prior written notice of the date proposed for such release (the "RELEASE DATE") which notice is revocable;
(B) No Event of Default shall have occurred and be continuing conditions are satisfied as of the date of such notice Property Release:
(a) No Default or Event of Default exists or will exist immediately after giving effect to such Property Release and the Release Datereduction in the Borrowing Base Availability by reason of the release of such Property;
(Cb) On The representations and warranties made or deemed made by the date proposed for such Release, the Borrowers shall defease all or a portion of Borrower and each other Loan Party in the Loan by delivering Documents to which any of them is a Defeasance Deposit party, are true and correct in all material respects (as defined in the Note) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the Note) for the entire principal amount of the Loan except in the case of a total defeasancerepresentation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) immediately prior to and after giving effect to such Property Release with the same force and effect as if made on and as of such date except to the extent (i) that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a partial defeasancerepresentation or warranty qualified by materiality, relating to the Release Price in which case such representation or warranty shall have been true and correct in all respects) on and as of each Property being released (together with all accrued and unpaid interest on the principal amount being so defeasedsuch earlier date), and such defeasance shall be undertaken (ii) of changes in accordance with factual circumstances resulting from transactions permitted by the terms and conditions of the Note, and Mezzanine Lender shall have received all amounts required to be paid to it in connection with such Release under the Mezzanine Loan Documents;
(Dc) If required by any Rating Agency, the Borrowers at their sole cost and expense, in connection with any partial defeasance, The Borrower shall have delivered to Lenderthe Administrative Agent a Borrowing Base Certificate demonstrating on a pro forma basis, one or more endorsements and the Administrative Agent shall have determined to its satisfaction that the Title Policies delivered to Lender on outstanding principal balance of the date hereof in connection Loans, together with the Mortgages insuring thatLetter of Credit Liabilities, will not exceed the Borrowing Base Availability after giving effect to such Release, (i) request and any prepayment to be made and/or the Liens created hereby and thereby and insured under the Title Policies are first priority Liens on the respective remaining Properties subject only acceptance of any Property as an additional or replacement Borrowing Base Property to the Permitted Encumbrances applicable to the remaining Properties and (ii) that the Title Policies remain in full force and effect and unaffected by be given concurrently with such Property Release;
(Ed) Immediately following The Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating on a pro forma basis, and the Administrative Agent shall have determined to its reasonable satisfaction, that after giving effect to such request and any prepayment of the Loans or other Indebtedness to be made that the Borrower will be in compliance with the covenants set forth in Section 10.1. after giving effect to the Property Release;
(e) After giving effect to such Property Release the number of Stabilized Properties in the Borrowing Base shall not be less than 4, and the Aggregate Borrowing Base Properties Value shall not be less than $45,000,000; and
(f) The Borrower shall have delivered to the Administrative Agent all documents and instruments reasonably requested by the Administrative Agent in connection with any partial defeasance, both the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) shall be equal to or greater than the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) in effect at Closing, or immediately prior to the such Property Release, whichever is greater;
(F) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 of any Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance of the Loan except pursuant to a total defeasance;
(G) The Borrowers shall pay all reasonable out-of-pocket costs and expenses (including, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursements) incurred all documents being requested by Lender, Servicer, and any custodian employed by Lender or Servicer, in connection with the Release; and
(H) Immediately following Borrower to effect such Property Release, each released Property will be owned including releases of applicable Security Documents or, if requested by a Person the Borrower, an assignment of the applicable Security Instrument to any party designated by the Borrower (other than the Borrowers, except as otherwise permitted in connection with any full Borrower or partial defeasance a nominee of the Loan Borrower), all without recourse, warranty or covenant of any nature, express or implied other than that the Administrative Agent is the holder of such Security Instrument free and clear of any Lien created by the Administrative Agent, which assignment the Administrative Agent agrees to effectuate so long as such assignment is not then prohibited by Applicable Law and is in accordance with form and substance acceptable to the terms and conditions of the NoteAdministrative Agent. Upon satisfaction of the above conditionsExcept as set forth in this Section 4.2., Lender shall effectuate the following (hereinafter referred to as a "PROPERTY RELEASE"): the security interest of Lender under the Mortgage and other Loan Documents relating to each released no Borrowing Base Property shall be released and Lender will execute and deliver any agreements reasonably requested from the Liens created by the Borrowers to release and terminate or reassign, at the Borrowers' option, the Mortgage, the Security Documents applicable Assignment of Leases, and financing statements as to each released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage relating to a released Property all references herein to the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. In addition, promptly after consummation of any such Property Release and Lender's receipt of the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the Borrowersthereto.
Appears in 1 contract
Release of Properties. On one or more occasions, the Borrowers may obtain the release (eachAt Owner's request, a "RELEASE") of one or more Properties Property shall be released from the Lien lien of the applicable Mortgage(sRelated Mortgage and all collateral derived from such Property (such as the related Principal Reserve Fund and the related Property Account) in connection with a partial or total defeasance of the Loan subject shall be released to the conditions of the Note and subject to the satisfaction Owner, without another Multifamily Residential Property being substituted therefor, if each of the following conditionsconditions are met:
(Aa) Lender shall have received Owner shall, at Owner's option, either redeem (using funds from the Borrowers at least fifteen (15Principal Reserve Fund or otherwise) days prior written notice or otherwise remove Bonds from the credit facility evidenced by this Agreement and/or post cash collateral in a manner acceptable to Fannie Mae in its discretion, in either case in an amount equal to 110% of the date proposed for Allocable Facility Amount of the Released Property; the following shall be credited toward such amount: (i) if the Released Property is a Bond Property, the principal amount of Related Bonds outstanding with respect to such Bond Property immediately prior to such release (provided, that, the requirements of section 5.3(c) have been satisfied), plus (ii) the amount of any other Bonds redeemed by Owner to obtain such release, plus (iii) the amount of any cash collateral ("RELEASE DATEPRICE CASH COLLATERAL") which notice is revocablethat has been deemed acceptable by Fannie Mae and posted by Owner to obtain such release;
(Bb) No Event of Default or Potential Event of Default shall have occurred and be continuing as of the date of such notice and the Release Datecontinuing;
(C) On the date proposed for such Release, the Borrowers shall defease all or a portion of the Loan by delivering a Defeasance Deposit (as defined in the Note) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the Note) for the entire principal amount of the Loan in the case of a total defeasance, or in the case of a partial defeasance, relating to the Release Price of each Property being released (together with all accrued and unpaid interest on the principal amount being so defeased), and such defeasance shall be undertaken in accordance with the terms and conditions of the Note, and Mezzanine Lender shall have received all amounts required to be paid to it in connection with such Release under the Mezzanine Loan Documents;
(Dc) If required by any Rating Agencythe Released Property is a Bond Property, the Borrowers at their sole cost and expense, in connection with any partial defeasance, shall have delivered to Lender, one or more endorsements to the Title Policies delivered to Lender on the date hereof in connection with the Mortgages insuring that, after giving effect to such Release, then either (i) the Liens created hereby and thereby and insured under Related Fannie Mae Collateral Agreement with respect to such Bond Property, if any, shall terminate on or before the Title Policies are first priority Liens on Released Property is released from the respective remaining Properties subject only to the Permitted Encumbrances applicable to the remaining Properties and lien of any Related Mortgage, or (ii) that Fannie Mae, in its discretion, shall have consented to the Title Policies remain transfer of the Bond Property and the assumption of the Related Mortgage Note, the Related Mortgage and the other related Transaction Documents, in full force and effect and unaffected by such Releaseaccordance with section 5.6;
(Ed) Immediately following any Release in connection with any partial defeasance, both Owner shall cause the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) shall Released Property to be equal immediately conveyed by Owner to or greater than the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) in effect at ClosingOP Partner, or immediately prior such other purchaser as Owner may determine, provided that with the consent of Fannie Mae, which consent will not be unreasonably withheld, Owner or, if applicable, the related Nominee Corp., may continue to own the Release, whichever Released Property for up to one year following the date the lien of the Related Mortgage is greaterreleased pursuant to this section;
(Fe) Notwithstanding All documentation relating to the foregoingforegoing is acceptable to Fannie Mae in all respects, including legal opinions, release documentation and any amendments to this Agreement or the Borrowers may not obtain the Release under this Section 11.4 of any Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance of the Loan except pursuant to a total defeasance;other Transaction Documents; and
(Gf) The Borrowers Owner shall pay pay, with respect to each Released Property, to Fannie Mae and Servicer, a due diligence fee plus all reasonable out-of-pocket costs and expenses (including, without limitation, title search costs and endorsement premiums and including reasonable attorney's legal fees and disbursementsexpenses) incurred by Lender, Servicer, and any custodian employed by Lender Fannie Mae or Servicer, Servicer in connection with the Release; and
(H) Immediately following such Property Release, each released Property will be owned by a Person other than the Borrowers, except as otherwise permitted in connection with any full or partial defeasance of the Loan in accordance with the terms and conditions of the Noteforegoing. Upon satisfaction of the above conditions, Lender shall effectuate the following (hereinafter referred to as a "PROPERTY RELEASE"): the security interest of Lender under the Mortgage and other Loan Documents relating to each released Property Such amounts shall be released and Lender will execute and deliver any agreements reasonably requested paid by Owner on or prior to the Borrowers to release and terminate closing date of such release, or reassign, at the Borrowers' option, the Mortgage, the applicable Assignment of Leases, and financing statements as to each released Property; provided, that if such release and termination or reassignment shall be without recourse fails to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property close, within thirty (except as contemplated hereby30) and Lender shall return the originals days of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage relating to a released Property all references herein to the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. In addition, promptly after consummation of any such Property Release and LenderOwner's receipt of the Defeasance Collateralinvoices therefor (and if requested by Owner, any reasonable supporting back-up invoices evidencing such items), and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to payable regardless whether the Borrowersproperty is or is not (for any reason) ultimately released from the lien of a Mortgage.
Appears in 1 contract
Samples: Master Reimbursement Agreement (Erp Operating LTD Partnership)
Release of Properties. On one or more occasionsFrom time to time the Borrower may request, the Borrowers may obtain the release upon not less than ten (each, a "RELEASE"10) of one or more Properties from the Lien of the applicable Mortgage(s) in connection with a partial or total defeasance of the Loan subject to the conditions of the Note and subject to the satisfaction of the following conditions:
(A) Lender shall have received from the Borrowers at least fifteen (15) days Business Days prior written notice of to the date proposed for such Administrative Agent, that any Borrowing Base Property, or portion thereof, be released from the Liens created by the Security Documents applicable thereto, which release (the "RELEASE DATEProperty Release") which notice is revocable;
(B) No Event shall be effected by the Administrative Agent if the Administrative Agent determines all of Default shall have occurred and be continuing the following conditions are satisfied as of the date of such notice and the Release Date;Property Release:
(Ca) On the date proposed for such Release, the Borrowers shall defease all or a portion of the Loan by delivering a Defeasance Deposit (as defined in the Note) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the Note) for the entire principal amount of the Loan in the case of a total defeasance, or in the case of a partial defeasance, relating Subject to the Release Price terms of each Property being released (together with all accrued and unpaid interest on the principal amount being so defeased)Section 11.10., and such defeasance shall be undertaken in accordance with the terms and conditions no Default or Event of the Note, and Mezzanine Lender shall have received all amounts required to be paid to it in connection with such Release under the Mezzanine Loan Documents;
(D) If required by any Rating Agency, the Borrowers at their sole cost and expense, in connection with any partial defeasance, shall have delivered to Lender, one Default exists or more endorsements to the Title Policies delivered to Lender on the date hereof in connection with the Mortgages insuring that, will exist immediately after giving effect to such Release, (i) Property Release and the Liens created hereby and thereby and insured under reduction in the Title Policies are first priority Liens on Borrowing Base by reason of the respective remaining Properties subject only to the Permitted Encumbrances applicable to the remaining Properties and (ii) that the Title Policies remain in full force and effect and unaffected by release of such ReleaseProperty;
(Eb) Immediately following any Release in connection with any partial defeasanceThe Borrower shall have delivered to the Administrative Agent a Borrowing Base Certificate demonstrating on a pro forma basis, both the Debt Service Coverage Ratio and the Debt Yield Administrative Agent shall have determined to its satisfaction (which determination may be based upon a trailing twelve (12) month period) shall be equal on Appraisals ordered pursuant to or greater than the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) in effect at Closing, or immediately prior to the Release, whichever is greater;
(F) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 of any Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date4.3.(b)(iii)), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of that the original outstanding principal balance of the Loan except pursuant Loans, together with the Letter of Credit Liabilities, will not exceed the Borrowing Base after giving effect to a total defeasancesuch request and any prepayment to be made and/or the acceptance of any Property as an additional or replacement Borrowing Base Property to be given concurrently with such request;
(Gc) The Borrowers Borrower shall pay have delivered to the Administrative Agent all reasonable out-of-pocket costs documents and expenses (instruments reasonably requested by the Administrative Agent in connection with such Property Release including, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursementsthe following:
(i) incurred by Lenderin the case of the release of a portion of a Borrowing Base Property, Servicera survey of such portion;
(ii) the quitclaim deed, and any custodian employed by Lender release, partial release or Servicer, in connection with the other instrument to be used to effect such Property Release; and
(Hiii) Immediately following an appropriate endorsement to the mortgagee title insurance policy in effect with respect to the affected Borrowing Base Property;
(d) after giving effect to such Property Release, each released of Post Oak Mall, Georgia Square Mall, Madison Square Mall and Richland Mall (or any regional mall which is a Borrowing Base Property and is determined by the Requisite Lenders, which for purposes of this subsection (d) must include the Lender then acting as Administrative Agent, to be of equivalent financial strength to any of the foregoing malls), will be remain as a Borrowing Base Property in the Borrowing Base; provided, however, if at the time of such Property Release, the Borrowing Base Properties consist only of the malls referred to above, then the provisions of this clause (d) shall not apply; and
(e) The Administrative Agent shall have reasonably determined that the market values of the remaining Borrowing Base Properties have not materially deteriorated since the respective dates of acceptance as Borrowing Base Properties. In connection with any Property Release of an entire Borrowing Base Property owned by a Person other than Subsidiary, the Borrowers, except Administrative Agent shall release such Subsidiary from the Guaranty to which it is a party so long as otherwise permitted no Default or Event of Default shall then be in connection with any full existence or partial defeasance of the Loan in accordance with the terms and conditions of the Note. Upon satisfaction of the above conditions, Lender shall effectuate the following (hereinafter referred to would occur as a "PROPERTY RELEASE"): the security interest result of Lender under the Mortgage and other Loan Documents relating to each released such release. Except as set forth in this Section 4.2., no Borrowing Base Property shall be released and Lender will execute and deliver any agreements reasonably requested from the Liens created by the Borrowers to release and terminate or reassign, at the Borrowers' option, the Mortgage, the Security Documents applicable Assignment of Leases, and financing statements as to each released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage relating to a released Property all references herein to the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. In addition, promptly after consummation of any such Property Release and Lender's receipt of the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the Borrowersthereto.
Appears in 1 contract
Release of Properties. On one or more occasions, the Borrowers may obtain the release (each, a "RELEASE") of one (1) or more of the Properties from the Lien of the applicable Mortgage(s) Deed of Trust in connection with (x) a partial sale of the applicable Property or total defeasance Properties to one or more Persons which are not Related Persons of the Borrowers or Guarantor, (y) a Release necessary to prevent an Uncured Franchise Default, or (z) a Release necessary to enable the Borrowers to comply with the restrictions set forth in Section 5.13(D), and prepayment of all or a portion of the Loan subject to the conditions of the Note and subject to the satisfaction of the following conditions:
(A) Lender shall have received from the Borrowers at least fifteen (15) days prior written notice of the date proposed for such release (the "RELEASE DATE") which notice is revocable;
(B) No Event of Default shall have occurred and be continuing as of the date of such notice and the Release Date;
(C) On Lender shall have received from the Borrowers on the date proposed for such Release, the Borrowers shall defease all or a portion of Release Price, for deposit into the Loan by delivering a Defeasance Deposit (as defined in the Note) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the Note) for the entire principal amount of the Loan in the case of a total defeasance, or in the case of a partial defeasance, relating to the Release Price of each Property being released (together with all accrued Lock Box Account and unpaid interest on the principal amount being so defeased), and such defeasance shall be undertaken disbursement in accordance with the terms and conditions of the NoteCash Management Agreement, and following such disbursement, Lender shall have received Mortgage Lender's Percentage of the Release Price and Mezzanine Lender shall have received all amounts required to be paid to it in connection with such Mezzanine Lender's Percentage of the Release under the Mezzanine Loan DocumentsPrice;
(D) If required by any Rating Agency, the The Borrowers at their sole cost and expense, in connection with any partial defeasance, shall have delivered to Lender, one or more endorsements to the Title Policies Polices delivered to Lender on the date hereof in connection with the Mortgages Deeds of Trust insuring that, after giving effect to such Release, (i) the Liens created hereby and thereby and insured under the Title Policies are first priority Liens on the respective remaining Properties subject only to the Permitted Encumbrances applicable to the remaining Properties and (ii) that the Title Policies remain in full force and effect and unaffected by such Release;
(E) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) shall be equal to or greater than the Debt Service Coverage Ratio and the Debt Yield in effect immediately prior to the Release (based upon a trailing twelve (12) month period) in effect at Closing, or immediately prior to the Release, whichever is greater);
(F) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 of any Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance of the Loan except pursuant to a total defeasance;
(G) The Borrowers shall pay all reasonable out-of-pocket costs and expenses (including, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursements) incurred by Lender, Servicer, and any custodian employed by Lender or Servicer, in connection with the Release; and
(HG) Immediately following such Property Release, each released the Released Property will be owned by a Person other than the Borrowers, except as otherwise permitted in connection with any full or partial defeasance of the Loan in accordance with the terms and conditions of the Note. Upon satisfaction of the above conditions, Lender shall effectuate the following (hereinafter referred to as a "PROPERTY RELEASE"): the security interest of Lender under the Mortgage Deed of Trust and other Loan Documents relating to each released the Released Property shall be released and Lender will execute and deliver any agreements reasonably requested by the Borrowers to release and terminate or reassign, at the Borrowers' option, the MortgageDeed of Trust, the applicable Assignment of Leases, and financing statements as to each the released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage Deed of Trust or the other Loan Documents relating to any the released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate 100 solely to each the released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage Deed of Trust relating to a the released Property all references herein to the Mortgage Deed of Trust relating to such the released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. In addition, promptly after consummation of any such Property Release and Lender's receipt of the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the Borrowers.
Appears in 1 contract
Release of Properties. On one or more occasions, If (x) the Borrowers may obtain the release (each, a "RELEASE") of one or more Properties from the Lien of the applicable Mortgage(s) in connection with a partial or total defeasance of the Loan subject to the conditions of the Note and subject to the satisfaction of the following conditions:
(A) Lender shall have received from the Borrowers at least fifteen (15) days prior written notice of the date proposed for such release (the "RELEASE DATE") which notice is revocable;
(B) No Event of Default shall have occurred and be continuing as of the date of such notice and the Release Date;
(C) On the date proposed for such Release, the Borrowers shall defease all or a portion of the Loan by delivering pursuant to Section 11.3 hereof to facilitate the disposition of a Defeasance Deposit Property or (as defined in y), prior to the NoteAnticipated Repayment Date, a prepayment is made pursuant to Section 2.6(A) or Section 5.5(C) hereof, Lender shall, promptly upon satisfaction of all the following terms and conditions execute, acknowledge and deliver to the Borrowers a release of applicable Loan Documents with respect to any such Property (a "RELEASE", and each such released Property, a "RELEASED PROPERTY") in an amount necessary recordable form with respect to pay all Scheduled Defeasance Payments the applicable Released Property:
(as defined in A) In the Note) for the entire principal amount event of a prepayment of the Loan in the case of a total defeasancepart, or but not in the case of a partial defeasancewhole, relating to the Release Price of each Property being released (together with all accrued and unpaid interest on the principal amount being so defeased), and such defeasance shall be undertaken in accordance with the terms and conditions of the Note, and Mezzanine Lender shall have received all amounts required the Release Price on the date proposed for such prepayment, which shall be applied in accordance with Section 2.4(A) hereof.
(B) Except for prepayments or defeasances, as applicable, which are made contemporaneously with the application of Loss Proceeds towards the payment of the Loan where such Loss Proceeds constitute at least fifty percent (50%) of the Release Price, Lender shall have received from the Borrowers evidence in form and substance satisfactory to be paid Lender that the Debt Service Coverage Ratio immediately following the Release is equal to it the greater of (x)
1.45:1 or (y) the Debt Service Coverage Ratio immediately prior to effecting such Release (unless the Borrowers have delivered a Rating Confirmation in connection with such Release under Release), accompanied by an Officer's Certificate stating that the Mezzanine Loan Documents;statements, calculations and information comprising such evidence are true, correct and complete in all respects.
(C) The Borrowers shall, at their sole expense, prepare any and all documents and instruments necessary to effect the Release, all of which shall be subject to the reasonable approval of Lender, and the Borrowers shall pay all costs reasonably incurred by Lender (including, but not limited to, reasonable attorneys' fees and disbursements, title search costs or endorsement premiums) in connection with the review, execution and delivery of the Release.
(D) If required by any Rating AgencyNo Event of Default has occurred and is continuing, unless the Borrowers at their sole cost and expense, in connection with any partial defeasance, shall have delivered to Lender, one or more endorsements to the Title Policies delivered to Lender on the date hereof in connection with the Mortgages insuring that, after giving effect to proposed Release will cure such Release, (i) the Liens created hereby and thereby and insured under the Title Policies are first priority Liens on the respective remaining Properties subject only to the Permitted Encumbrances applicable to the remaining Properties and (ii) that the Title Policies remain in full force and effect and unaffected by such Release;Event of Default.
(E) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) shall be equal to or greater than the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) in effect at Closing, or immediately prior to the such Release, whichever is greater;
(F) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 of any Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance of the Loan except pursuant to a total defeasance;
(G) The Borrowers shall pay all reasonable out-of-pocket costs and expenses (including, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursements) incurred by Lender, Servicer, and any custodian employed by Lender or Servicer, in connection with the Release; and
(H) Immediately following such Property Release, each released Released Property will be owned by a Person other than the BorrowersBorrowers or any of their Affiliates (unless such Release is effectuated to cure a Default, except as otherwise permitted in connection with any full or partial defeasance which event the Released Property may be owned by an Affiliate of the Loan in accordance with Borrowers). Notwithstanding the terms and conditions of foregoing to the Note. Upon satisfaction of contrary, following the above conditionsAnticipated Repayment Date, Lender shall effectuate the following (hereinafter referred to as a "PROPERTY RELEASE"): the security interest of Lender under the Mortgage and other Loan Documents relating to each released Property shall be released and Lender will execute and deliver any agreements reasonably requested by the Borrowers may request a Release of one or more Properties subject to (i) Lender's prior approval, (ii) payment of a release and terminate or reassign, at the Borrowers' option, the Mortgage, the applicable Assignment of Leasesprice satisfactory to Lender, and financing statements as to each released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property (except as contemplated herebyiii) and Lender shall return the originals delivery of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage relating to a released Property all references herein to the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. In addition, promptly after consummation of any such Property Release and Lender's receipt of the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the BorrowersRating Confirmation.
Appears in 1 contract
Release of Properties. On one or more occasionsFrom time to time the Borrower may request, the Borrowers may obtain the release (each, a "RELEASE") of one or more Properties from the Lien of the applicable Mortgage(s) in connection with a partial or total defeasance of the Loan subject to the conditions of the Note and subject to the satisfaction of the following conditions:
(A) Lender shall have received from the Borrowers at least fifteen (15) upon not less than 10 days prior written notice to the Administrative Agent (or such shorter period as may be acceptable to the Administrative Agent in its sole discretion), that a Borrowing Base Asset be no longer considered a Borrowing Base Asset, which release (a “Property Release”) shall be effected by the Administrative Agent if the Administrative Agent determines all of the date proposed for such release (the "RELEASE DATE") which notice is revocable;
(B) No Event of Default shall have occurred and be continuing following conditions are satisfied as of the date of such notice Property Release:
(a) No Default or Event of Default exists or will exist immediately after giving effect to such Property Release and the Release Datereduction in the Borrowing Base by reason of such Property Release;
(Cb) On The representations and warranties made or deemed made by the date proposed for such Release, the Borrowers shall defease all or a portion of Borrower and each other Loan Party in the Loan by delivering Documents to which any of them is a Defeasance Deposit party, are true and correct in all material respects (as defined in the Note) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the Note) for the entire principal amount of the Loan except in the case of a total defeasancerepresentation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) immediately prior to and after giving effect to such Property Release with the same force and effect as if made on and as of such date except to the extent (i) that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a partial defeasancerepresentation or warranty qualified by materiality, relating to the Release Price in which case such representation or warranty shall have been true and correct in all respects) on and as of each Property being released (together with all accrued and unpaid interest on the principal amount being so defeasedsuch earlier date), and such defeasance shall be undertaken (ii) of changes in accordance with factual circumstances resulting from transactions permitted by the terms and conditions of the Note, and Mezzanine Lender shall have received all amounts required to be paid to it in connection with such Release under the Mezzanine Loan Documents;
(Dc) If required by any Rating Agency, the Borrowers at their sole cost and expense, in connection with any partial defeasance, The Borrower shall have delivered to Lenderthe Administrative Agent a Borrowing Base Certificate and Compliance Certificate demonstrating on a pro forma basis, one or more endorsements and the Administrative Agent shall have determined to the Title Policies delivered to Lender on the date hereof in connection with the Mortgages insuring thatits reasonable satisfaction, that after giving effect to such Releaserequest and any prepayment of the Loans or other Indebtedness to be made and/or the acceptance of any Property, (i) Mortgage Receivable or cash or cash equivalents as an additional or replacement Borrowing Base Asset to be given concurrently with such request, that the Liens created hereby and thereby and insured under Borrower will be in compliance with the Title Policies are first priority Liens on the respective remaining Properties subject only covenants set forth in Section 10.1. after giving effect to the Permitted Encumbrances applicable to the remaining Properties and (ii) that the Title Policies remain in full force and effect and unaffected by such Release;
(E) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) shall be equal to or greater than the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) in effect at Closing, or immediately prior to the Release, whichever is greater;
(F) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 of any Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance of the Loan except pursuant to a total defeasance;
(G) The Borrowers shall pay all reasonable out-of-pocket costs and expenses (including, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursements) incurred by Lender, Servicer, and any custodian employed by Lender or Servicer, in connection with the Release; and
(Hd) Immediately following After giving effect to such Property Release, each released the number of Borrowing Base Properties shall be at least 100, and the aggregate Unencumbered Eligible Property will Values of such Borrowing Base Properties shall be owned at least $300,000,000. Delivery by the Borrower to the Administrative Agent of a Person other than request for a Property Release shall constitute a representation by the Borrowers, except Borrower that the matters set forth in the immediately preceding clauses (a) and (b) (both as otherwise permitted in connection with any full or partial defeasance of the Loan in accordance with the terms and conditions date of the Note. Upon satisfaction giving of such request and as of the above conditions, Lender shall effectuate date of the following (hereinafter referred to as a "PROPERTY RELEASE"): the security interest effectiveness of Lender under the Mortgage such request) are true and other Loan Documents relating to each released Property shall be released and Lender will execute and deliver any agreements reasonably requested by the Borrowers to release and terminate or reassign, at the Borrowers' option, the Mortgage, the applicable Assignment of Leases, and financing statements as to each released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage relating to a released Property all references herein to the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein correct with respect to indemnities. In addition, promptly after consummation of any such Property Release and Lender's receipt of the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the Borrowersrequest.
Appears in 1 contract
Release of Properties. On one or more occasions, the Borrowers may obtain the release (eachAt Owner's request, a "RELEASE") of one or more Properties Property shall be released from the Lien lien of the applicable Mortgage(sRelated Mortgage and all collateral derived from such Property (such as the related Principal Reserve Fund and the related Property Account) in connection with a partial or total defeasance of the Loan subject shall be released to the conditions of the Note and subject to the satisfaction Owner, without another Multifamily Residential Property being substituted therefor if each of the following conditionsconditions are met:
(a) Owner shall either redeem or otherwise remove Bonds from the credit facility evidenced by this Agreement and/or post cash collateral in a manner acceptable to Fannie Mae, in either case in an amount equal to the greater of (i) 110% of the Allocable Facility Amount of the Released Property and (ii) the outstanding principal amount of the Related Bonds; the following shall be credited toward such amount: (A) Lender shall have received from if the Borrowers at least fifteen (15) days Released Property is a Bond Property, the principal amount of Related Bonds outstanding with respect to such Bond Property immediately prior written notice of the date proposed for to such release (provided, that, the requirements of section 5.3(c) have been satisfied), plus (B) the amount of any other Bonds redeemed or otherwise removed by Owner to obtain such release, plus (C) the amount of any cash collateral ("RELEASE DATEPRICE CASH COLLATERAL") which notice is revocablethat has been deemed acceptable by Fannie Mae and posted by Owner to obtain such release;
(Bb) No Event of Default or Potential Event of Default shall have occurred and be continuing as of the date of such notice and the Release Datecontinuing;
(Cc) On If the date proposed for such ReleaseReleased Property is a Bond Property, then either (i) the Related Fannie Mae Collateral Agreement shall terminate on or before the Released Property is released from the lien of any Related Mortgage, or (ii) Fannie Mae shall have consented to the transfer of the Bond Property and the assumption of the Related Mortgage Note, the Borrowers shall defease all or a portion of Related Mortgage and the Loan by delivering a Defeasance Deposit (as defined in the Note) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the Note) for the entire principal amount of the Loan in the case of a total defeasance, or in the case of a partial defeasance, relating to the Release Price of each Property being released (together with all accrued and unpaid interest on the principal amount being so defeased), and such defeasance shall be undertaken in accordance with the terms and conditions of the Note, and Mezzanine Lender shall have received all amounts required to be paid to it in connection with such Release under the Mezzanine Loan other related Transaction Documents;
(Dd) If required Owner shall cause the Released Property to be immediately conveyed by any Rating Agency, the Borrowers at their sole cost and expense, in connection with any partial defeasance, shall have delivered to Lender, one or more endorsements to the Title Policies delivered to Lender on the date hereof in connection with the Mortgages insuring that, after giving effect Owner to such Release, (i) the Liens created hereby and thereby and insured under the Title Policies are first priority Liens on the respective remaining Properties subject only to the Permitted Encumbrances applicable to the remaining Properties and (ii) that the Title Policies remain in full force and effect and unaffected by such Releasepurchaser as Owner may determine;
(E) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) shall be equal to or greater than the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) in effect at Closing, or immediately prior to the Release, whichever is greater;
(F) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 of any Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance of the Loan except pursuant to a total defeasance;
(G) The Borrowers shall pay all reasonable out-of-pocket costs and expenses (including, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursements) incurred by Lender, Servicer, and any custodian employed by Lender or Servicer, in connection with the Release; and
(H) Immediately following such Property Release, each released Property will be owned by a Person other than the Borrowers, except as otherwise permitted in connection with any full or partial defeasance of the Loan in accordance with the terms and conditions of the Note. Upon satisfaction of the above conditions, Lender shall effectuate the following (hereinafter referred to as a "PROPERTY RELEASE"): the security interest of Lender under the Mortgage and other Loan Documents relating to each released Property shall be released and Lender will execute and deliver any agreements reasonably requested by the Borrowers to release and terminate or reassign, at the Borrowers' option, the Mortgage, the applicable Assignment of Leases, and financing statements as to each released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage relating to a released Property all references herein to the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. In addition, promptly after consummation of any such Property Release and Lender's receipt of the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the Borrowers.
Appears in 1 contract
Samples: Master Reimbursement Agreement (Ambassador Apartments Inc)
Release of Properties. On one or more occasions, the Borrowers A Property may obtain the release (each, a "RELEASE") of one or more Properties be released from the Lien lien of the applicable Mortgage(s) in connection with a partial or total defeasance of the Loan subject to the conditions of the Note and subject to the satisfaction Mortgage without another Multifamily Residential Property being substituted therefor if each of the following conditionsconditions are met:
(Aa) Lender the Borrowers shall have received either redeem or otherwise remove Bonds from the Borrowers at least fifteen (15) days prior written notice Fannie Mae Credit Facility and/or post cash collateral in a manner acceptable to Fannie Mae in its discretion, in either case in an amount equal to 110% of the date proposed for such release Allocable Facility Amount of the Released Property (the "RELEASE DATEPRICE"). The Release Price requirement shall be satisfied by (i) if the Released Property is a Bond Property, the amount of Related Bonds outstanding with respect to such Bond Property immediately prior to such release (provided, that, the requirements of section 5.3(c) have been satisfied), plus (ii) the amount of any other Bonds redeemed by the Borrowers to obtain such release, plus (iii) the amount of any letter of credit in form and substance and provided by a financial institution satisfactory to Fannie Mae in its discretion or any cash collateral deposited with Fannie Mae or its designee and otherwise held in a manner approved by Fannie Mae in its discretion ("RELEASE PRICE CASH COLLATERAL") which notice is revocable;and posted by the Borrowers to obtain such release; and
(Bb) No no Event of Default or Potential Event of Default shall have occurred and be continuing as of the date of such notice and the Release Date;continuing; and
(Cc) On if the date proposed for such ReleaseReleased Property is a Bond Property, the Borrowers shall defease all or a portion of the Loan by delivering a Defeasance Deposit (as defined in the Note) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the Note) for the entire principal amount of the Loan in the case of a total defeasance, or in the case of a partial defeasance, relating to the Release Price of each Property being released (together with all accrued and unpaid interest on the principal amount being so defeased), and such defeasance shall be undertaken in accordance with the terms and conditions of the Note, and Mezzanine Lender shall have received all amounts required to be paid to it in connection with such Release under the Mezzanine Loan Documents;
(D) If required by any Rating Agency, the Borrowers at their sole cost and expense, in connection with any partial defeasance, shall have delivered to Lender, one or more endorsements to the Title Policies delivered to Lender on the date hereof in connection with the Mortgages insuring that, after giving effect to such Release, then either (i) the Liens created hereby and thereby and insured under Related Fannie Mae Credit Enhancement Instrument shall, subject to subsection 5.3(h), terminate on or before the Title Policies are first priority Liens on Released Property is released from the respective remaining Properties subject only to the Permitted Encumbrances applicable to the remaining Properties and lien of any Related Mortgage, or (ii) that Fannie Mae, in its discretion, shall have consented to the Title Policies remain in full force and effect and unaffected by transfer of such Release;
(E) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio Bond Property and the Debt Yield (based upon a trailing twelve (12) month period) shall be equal to or greater than assumption of the Debt Service Coverage Ratio Related Mortgage Note, the Related Mortgage and the Debt Yield (based upon a trailing twelve (12) month period) other related Transaction Documents in effect at Closing, or immediately prior to the Release, whichever is greater;
(F) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 of any Property or Properties which individually, or in the aggregate (accordance with all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance of the Loan except pursuant to a total defeasance;
(G) The Borrowers shall pay all reasonable out-of-pocket costs and expenses (including, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursements) incurred by Lender, Servicer, and any custodian employed by Lender or Servicer, in connection with the Releasesection 5.6; and
(Hd) Immediately following the applicable Borrower shall cause the Released Property to be immediately conveyed by such Property Release, each released Property will be owned by a Borrower to Guarantor or such other Person (other than another Borrower) as such Borrower may determine; and
(e) if the BorrowersReleased Property is a Custodial Receipts Property, except as otherwise permitted in connection with any full or partial defeasance then the Obligations of the Loan in accordance Borrower with the terms and conditions of the Note. Upon satisfaction of the above conditions, Lender shall effectuate the following (hereinafter referred respect to as a "PROPERTY RELEASE"): the security interest of Lender under the Mortgage and other Loan Documents relating to each released such Custodial Receipts Property shall be released and Lender will execute and deliver any agreements reasonably requested by the Borrowers to release and terminate or reassign, at the Borrowers' option, the Mortgage, the applicable Assignment of Leases, and financing statements as to each released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage relating to a released Property all references herein to the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. In addition, promptly after consummation of any such Property Release and Lender's receipt of the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the Borrowers.assumed
Appears in 1 contract
Samples: Master Reimbursement Agreement (Avalon Properties Inc)
Release of Properties. On one or more occasionsany Business Day after the Defeasance Lockout Release Date (except with respect to a release in connection with the Xxxxxx Purchase Opportunity which may also occur prior to the Defeasance Lockout Release Date), the Borrowers any Borrower may obtain the release (each, a "RELEASE") of one or more Properties any Property owned by it from the Lien lien of the applicable Mortgage(sSecurity Instrument encumbering such Property (and related Loan Documents) thereon, provided each of the following conditions are satisfied:
(a) If the subject release is a release of the Xxxxxx Property in connection with a partial or total defeasance the Xxxxxx Tenant’s exercise of the Loan Xxxxxx Purchase Opportunity that shall occur prior to the Defeasance Lockout Release Date, Borrowers shall repay an amount of principal equal to (A) the Release Amount for the Property in question and (B) in the event that, after taking into account the prepayment of principal pursuant to clause (A) above, the loan-to-value ratio (such value shall be based on Properties that then remain subject to the conditions lien of the Note mortgages and shall be determined, in Lender’s sole discretion, by any commercially reasonable method permitted to a REMIC Trust; and which shall exclude the value of personal property or going concern value, if any) is greater than 125%, Borrowers shall also make payment of principal in an amount such that the loan-to-value ratio (such value to be determined, in Lender’s sole discretion, by any commercially reasonable method permitted to a REMIC Trust, and which shall exclude the value of personal property or going concern value, if any) is no more than one hundred and twenty five percent (125%) plus the Partial Release Yield Maintenance Premium applicable to the prepayment(s) made pursuant to clause (A) above and, if applicable clause (B), above. Additionally, if such prepayment is being made on a date other than a Payment Date, interest on such additional Principal being prepaid pursuant to this clause (a) to an including the next occurring Monthly Payment Date;
(b) If the subject release shall occur prior to the Open Period Start Date (including a release of the Xxxxxx Property in connection with the Xxxxxx Purchase Opportunity that occurs after the Defeasance Lockout Release Date), Borrowers shall either:
(i) defease an amount of principal equal to the Release Amount for the Property in question and Borrowers shall satisfy all of the requirements of Section 2.8 with respect to such Defeasance or
(ii) repay an amount of principal equal to (A) the Release Amount for the Property in question and (B) in the event that, after taking into account the prepayment of principal pursuant to clause (A) above, the loan-to-value ratio (such value shall be based on Properties that then remain subject to the satisfaction lien of the following conditions:
mortgages and shall be determined, in Lender’s sole discretion, by any commercially reasonable method permitted to a REMIC Trust; and which shall exclude the value of personal property or going concern value, if any) is greater than 125%, Borrowers shall also make payment of principal in an amount such that the loan-to-value ratio (such value to be determined, in Lender’s sole discretion, by any commercially reasonable method permitted to a REMIC Trust, and which shall exclude the value of personal property or going concern value, if any) is no more than one hundred and twenty five percent (125%) plus the Partial Release Yield Maintenance Premium applicable to the prepayment(s) made pursuant to clause (A) Lender above and, if applicable clause (B), above. Additionally, if such prepayment is being made on a date other than a Payment Date, interest on such additional Principal being prepaid pursuant to this clause (ii) to an including the next occurring Monthly Payment Date, or
(c) If the subject release shall occur after the Open Period Start Date, Borrowers shall prepay, without payment of any Maintenance Premium, an amount of principal equal to the Release Amount for the Property in question;
(d) Both immediately before such sale and immediately thereafter, no Event of Default shall be continuing, other than an Event of Default which would be cured by the release of the Property Properties sought to be released;
(e) After giving effect to such release, each Borrower shall remain a Single Purpose Entity;
(f) Borrowers shall have received from the Borrowers given Lender at least fifteen (15) days 20 days’ prior written notice of the date proposed for such release, accompanied by a copy of any applicable release documents (the "RELEASE DATE") which notice is revocableshall be subject to Lender’s reasonable approval);
(Bg) No Event of Default Borrowers shall have occurred and be continuing as of the date of such notice and the Release Date;
(C) On the date proposed for such Release, the Borrowers shall defease all or a portion of the Loan by delivering a Defeasance Deposit (as defined in the Note) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the Note) for the entire principal amount of the Loan in the case of a total defeasance, or in the case of a partial defeasance, relating to the Release Price of each Property being released (together with all accrued and unpaid interest on the principal amount being so defeased), and such defeasance shall be undertaken in accordance with the terms and conditions of the Note, and Mezzanine Lender shall have received all amounts required to be paid to it in connection with such Release under the Mezzanine Loan Documents;
(D) If required by any Rating AgencyLender all reasonable, the Borrowers at their sole cost and expense, in connection with any partial defeasance, shall have delivered to Lender, one or more endorsements to the Title Policies delivered to Lender on the date hereof in connection with the Mortgages insuring that, after giving effect to such Release, (i) the Liens created hereby and thereby and insured under the Title Policies are first priority Liens on the respective remaining Properties subject only to the Permitted Encumbrances applicable to the remaining Properties and (ii) that the Title Policies remain in full force and effect and unaffected by such Release;
(E) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) shall be equal to or greater than the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) in effect at Closing, or immediately prior to the Release, whichever is greater;
(F) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 of any Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance of the Loan except pursuant to a total defeasance;
(G) The Borrowers shall pay all reasonable actual out-of-pocket costs and expenses (including, without limitation, title search costs and endorsement premiums and including reasonable attorney's fees and disbursementsattorneys’ fees) incurred by Lender, Servicer, and any custodian employed by Lender or Servicer, in connection with such release of such Property from the Releaselien of the Loan Documents;
(h) Borrowers and Guarantor shall execute and deliver such documents as Lender may reasonably request to confirm the continued validity of the Loan Documents and the liens thereof;
(i) after giving effect to such release and Defeasance or prepayment, the Actual Debt Service Coverage Ratio for all of the Properties then remaining subject to the liens of the Security Instruments shall be no less than the greater of (i) the Actual Debt Service Coverage Ratio immediately preceding such release (inclusive of the Property that is the subject of the release) (the “Release Date DSCR”) and (ii) 1.41:1.00; provided however, if the Release Date DSCR is greater than 1.69:1.0, the condition in this clause (j) shall be deemed satisfied (even if the Actual Debt Service Coverage Ratio for all Properties then remaining subject to the liens of the Security Instruments, immediately after the release, is lower than the Release Date DSCR) so long as the Actual Debt Service Coverage Ratio for all of the Properties then remaining subject to the liens of the Security Instruments, after giving effect to the release, is no less than 1.69:1.0;
(j) after giving effect to such release and Defeasance or prepayment, the Debt Yield for all of the Properties then remaining subject to the liens of the Security Instruments shall be no less than the greater of (i) the Debt Yield immediately preceding such release (inclusive of the Property that is the subject of the release) (the “Release Date Debt Yield”) and (ii) 12.3%; provided however, if the Release Date Debt Yield is greater than 14.1%, the condition in this clause (h) shall be deemed satisfied (even if the Debt Yield for all Properties then remaining subject to the liens of the Security Instruments, immediately after the release, is lower than the Release Date Debt Yield) so long as the Debt Yield for all of the Properties then remaining subject to the liens of the Security Instruments, after giving effect to the release, is no less than 14.1%; and
(Hk) Immediately following after giving effect to such Property Releaserelease and Defeasance or prepayment, each released Property will the LTV Percentage for all of the Properties then remaining subject to the liens of the Security Instruments shall be owned by a Person other no more than 65% (based on the BorrowersAppraised Values of such Properties. Supplementing clauses (i), except as otherwise permitted (j) and (k) above, if Borrowers are unable to satisfy the requirements of such clauses in connection with any full or partial defeasance a release of the Loan Xxxxxx Property being made on account of the Xxxxxx Tenant’s exercise of the Xxxxxx Purchase Opportunity, Borrowers shall make an additional repayment of principal in accordance an amount sufficient to satisfy the requirements of clauses (i), (j) and (k) (as applicable) together with the terms and conditions of applicable Partial Release Yield Maintenance Premium allocable to such repayment. Further, if Borrowers are required to make the Note. Upon satisfaction of the above conditionsforegoing additional repayments, Lender Borrowers shall effectuate the following (hereinafter referred not be permitted to as a "PROPERTY RELEASE"): the security interest of Lender under the Mortgage and other Loan Documents relating elect to each released Property shall be released and Lender will execute and deliver any agreements reasonably requested by the Borrowers to release and terminate or reassign, at the Borrowers' option, the Mortgage, partially defease the applicable Assignment of Leases, and financing statements Release Amount as to each released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property set forth in clause (except as contemplated herebyb)(i) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage relating to a released Property all references herein to the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. In addition, promptly after consummation of any such Property Release and Lender's receipt of the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the Borrowershereof.
Appears in 1 contract
Release of Properties. On one or more occasions, the Borrowers may obtain the release (each, a "RELEASE") of one (1) or more of the Properties from the Lien of the applicable Mortgage(s) in connection with a partial or total defeasance of the Loan in accordance with the terms and subject to the conditions of the Note and subject to the satisfaction of the following conditions:
(A) Lender shall have received from the Borrowers at least fifteen (15) 30 days prior written notice of the date proposed for such release (the "RELEASE DATERelease Date") which notice is revocable);
(B) No Event of Default shall have occurred and be continuing as of the date of such notice and the Release Date;
(C) On the date proposed for such Release, the The Borrowers shall defease all or a portion of the Loan by delivering a Defeasance Deposit (as defined in the Note) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the Note) for the entire principal amount of the Loan in the case of a total defeasance, or in the case of a partial defeasance, relating to the Release Price of each the Property being released (together with all accrued and unpaid interest on the principal amount being so defeased), and such defeasance shall be undertaken in accordance with pursuant to the terms and conditions of the Note, and Mezzanine Lender all of such terms and conditions shall have received all amounts required to be paid to it in connection with such Release under the Mezzanine Loan Documentssatisfied;
(D) If required by any Rating Agency, the The Borrowers at their sole cost and expense, in connection with any partial defeasance, shall have delivered to LenderLender an Officer's Certificate, one or more endorsements dated the Release Date, confirming the matters referred to the Title Policies delivered to Lender on the date hereof in connection with the Mortgages insuring thatclause (B) above, after giving effect to such Release, (i) the Liens created hereby and thereby and insured under the Title Policies are first priority Liens on the respective remaining Properties subject only to the Permitted Encumbrances applicable to the remaining Properties and (ii) certifying that the Title Policies remain in full force provisions of clause (C) above have been complied with and effect and unaffected by such Release;
(E) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) shall be equal to or greater than the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) in effect at Closing, or immediately prior to the Release, whichever is greater;
(F) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 of any Property or Properties which individually, or in the aggregate (with certifying that all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance of the Loan except pursuant to a total defeasance;
(G) The Borrowers shall pay all reasonable out-of-pocket costs and expenses (including, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursements) incurred by Lender, Servicer, and any custodian employed by Lender or Servicer, in connection with the Release; and
(H) Immediately following such Property Release, each released Property will be owned by a Person other than the Borrowers, except as otherwise permitted in connection with any full or partial defeasance of the Loan in accordance with the terms and conditions of the Note. Upon satisfaction of the above conditions, Lender shall effectuate the following (hereinafter referred to as a "PROPERTY RELEASE"): the security interest of Lender under the Mortgage and other Loan Documents relating to each released Property shall be released and Lender will execute and deliver any agreements reasonably requested by the Borrowers to release and terminate or reassign, at the Borrowers' option, the Mortgage, the applicable Assignment of Leases, and financing statements as to each released Property; provided, that precedent for such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to contained in this Loan Agreement have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage relating to a released Property all references herein to the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. In addition, promptly after consummation of any such Property Release and Lender's receipt of the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the Borrowers.complied with;
Appears in 1 contract
Samples: Loan and Security Agreement (HRPT Properties Trust)
Release of Properties. On Borrower shall have the right to obtain a release of one or more occasions, of the Borrowers may obtain the release Individual Properties (each, a "RELEASE"Property Release and such Individual Property being a Release Property) of one or more Properties in whole, but not in part, from the Lien lien of the applicable Mortgage(s) in connection with a partial or total defeasance of the Loan subject to the conditions of the Note and subject to the satisfaction Security Instruments provided that all of the following conditionsconditions are satisfied:
(i) Borrower delivers irrevocable notice of such Property Release (a Property Release Notice) no less than ten (10) Business Days prior to the proposed date of such Property Release (the Release Date);
(ii) The aggregate Releases Prices of the Release Properties shall not exceed $12,000,000;
(iii) On such Release Date, concurrently with Lender's release of such Individual Property, Borrower shall pay to Lender (A) an amount equal to one hundred twenty-five percent (125%) of the Allocated Loan Amount of any Individual Property with an Allocated Loan Amount that is greater than $0.00 and (B) with respect to any Individual Property that has an Allocated Loan Amount that is equal to $0.00, an amount equal to the lesser of (1) the actual consideration received by Borrower from Bank of American, N.A. in the event such Individual Property is transferred by Borrower to Bank of America, N.A. and (2) fifty percent (50%) of the "As Is" value that is identified for such Individual Property on Schedule VII (each such amount, a Release Price), in either case together with any interest payable with respect to the amount of such payment through the end of the Interest Period in which such Release Date occurs (such amount being the Release Payment). Notwithstanding the foregoing, in no event shall such Release Payment exceed the then outstanding Obligations. In no event shall a Property Release occur (and Lender shall have received from the Borrowers at least fifteen (15no obligation to release any Individual Property) days prior written notice of the on a date proposed for such release (the "RELEASE DATE") which notice that is revocablenot a Release Date;
(Biv) No Event of Default shall have occurred and be is then continuing as of on the date of such notice on which Borrower delivers the Property Release Notice and on the Release Date;
(Cv) On Borrower shall execute and deliver such other instruments, certificates, opinions of counsel and documentation as Lender and the date proposed for such ReleaseRating Agencies shall reasonably request in order to preserve, confirm or secure the Borrowers shall defease all Liens and security granted to Lender by the Loan Documents, including any amendments, modification or a portion supplements to any of the Loan by delivering a Defeasance Deposit (as defined in the Note) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the Note) for the entire principal amount of the Loan in the case of a total defeasance, or in the case of a Documents and partial defeasance, relating release endorsements to the Release Price Title Policy;
(vi) Borrower shall pay for any and all reasonable out of each Property being released (together pocket costs and expenses incurred in connection with any proposed release, including Lender's reasonable attorneys' fees and disbursements and all accrued and unpaid interest on title insurance premiums for any endorsements to the principal amount being so defeased), and such defeasance shall be undertaken in accordance with the terms and conditions of the Note, and Mezzanine Title Policy reasonably required by Lender shall have received all amounts required to be paid to it in connection with such Release under the Mezzanine Loan Documents;
(D) If required by any Rating Agency, the Borrowers at their sole cost and expense, in connection with any partial defeasance, shall have delivered to Lender, one or more endorsements to the Title Policies delivered to Lender on the date hereof in connection with the Mortgages insuring that, after giving effect to such Release, (i) the Liens created hereby and thereby and insured under the Title Policies are first priority Liens on the respective remaining Properties subject only to the Permitted Encumbrances applicable to the remaining Properties and (ii) that the Title Policies remain in full force and effect and unaffected by such Release;
(E) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) shall be equal to or greater than the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) in effect at Closing, or immediately prior to the Release, whichever is greater;
(F) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 of any proposed Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance of the Loan except pursuant to a total defeasance;
(G) The Borrowers shall pay all reasonable out-of-pocket costs and expenses (including, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursements) incurred by Lender, Servicer, and any custodian employed by Lender or Servicer, in connection with the Release; and
(Hvii) Immediately following such Property ReleasePrior to the Release Date, each released Property will be owned Borrower shall deliver to Lender evidence reasonably satisfactory to Lender that all amounts owing by a Person other than the Borrowers, except as otherwise permitted Borrower to any parties in connection with any full or partial defeasance of the Loan in accordance with the terms and conditions of the Note. Upon satisfaction of the above conditions, Lender shall effectuate the following (hereinafter referred to as a "PROPERTY RELEASE"): the security interest of Lender under the Mortgage and other Loan Documents transaction relating to each released the proposed Property shall be released and Lender will execute and deliver any agreements reasonably requested by the Borrowers to release and terminate Release have been paid in full, or reassign, are simultaneously paid in full at the Borrowers' option, the Mortgage, the applicable Assignment of Leases, and financing statements as to each released Property; provided, that such release and termination Release Date or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest adequate reserves therefor are established by Borrower in the Mortgage relating to a released Property all references herein to the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein cash with respect to indemnities. In addition, promptly after consummation contingent or other liabilities that may arise out of any such Property Release and Lender's receipt of the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the Borrowerstransaction.
Appears in 1 contract
Samples: Loan and Security Agreement (American Financial Realty Trust)
Release of Properties. On one Except as set forth in Section 2.7(b) or more occasionsthis Section 2.10, no repayment or prepayment of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the Borrowers release of any lien of the Pledge Agreement.
(a) At any time in connection with an arms-length transfer to a third-party Person which is not an Affiliate of Borrower, Borrower may (x) cause Mezzanine A Borrower to cause Mortgage Borrower to obtain the release of an Individual Property from the lien of the Security Instrument thereon and related Mortgage Loan Documents in accordance with the Mortgage Loan Documents (eacheach such Individual Property, a "RELEASE"“Release Property”) and (y) cause Mezzanine A Borrower to obtain the release of one or more Properties the Mezzanine A Collateral related to the owner of such Release Property from the Lien lien of the applicable Mortgage(s) in connection with a partial or total defeasance Mezzanine A Loan Documents and the release of Mezzanine A Borrower’s obligations under the Loan subject Documents with respect to the conditions of the Note such Release Property and subject related Mezzanine A Collateral (other than those expressly stated to survive), upon the satisfaction of each of the following conditions:
(Ai) Borrower shall deliver notice to Lender shall have received from the Borrowers at least fifteen (15) days prior written notice of the date proposed for release of such release (Release Property and the "RELEASE DATE") which notice is revocablerelated Mezzanine A Collateral;
(Bii) No no Event of Default shall have occurred and be continuing on the date that the Release Property and the related Mezzanine A Collateral is released from the lien of the Security Instrument or the Mezzanine A Pledge Agreement, as applicable, thereon other than as expressly permitted below;
(iii) Borrower shall have paid to Lender the applicable Release Amount together with any Yield Maintenance Premium then required (if any);
(iv) Borrower shall submit to Lender, not less than ten (10) days prior to the date of such release, a release or assignment of lien (and related Loan Documents) for such Mezzanine A Collateral related to the Release Property for execution by Xxxxxx. Such release or assignment shall be in a form appropriate in each applicable jurisdiction and that would be reasonably satisfactory to a prudent lender. In addition, Borrower shall provide all documentation Lender reasonably requires to be delivered by Borrower in connection with such release or assignment, as applicable, together with an Officer’s Certificate certifying that such documentation (A) will effect such release or assignment in accordance with the terms of this Agreement, and (B) will not impair or otherwise adversely affect the liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the parties to the Loan Documents and the Collateral subject to the Loan Documents not being released);
(v) After giving effect to such release, as of the date of such notice release, the Debt Yield shall not be less than the greater of Closing Date Debt Yield and the Release Date;
Debt Yield immediately prior to the release; provided, however, that in order to satisfy the Debt Yield requirement set forth in this clause (Cv) On the date proposed for such Release, the Borrowers shall defease all or Borrower may make a prepayment of a portion of the Loan by delivering a Defeasance Deposit (as defined in the Noteaccordance with Section 2.7(a) hereof in an amount necessary sufficient to pay all Scheduled Defeasance Payments satisfy the Debt Yield requirement set forth in this clause (as defined in the Note) for the entire principal amount of the Loan in the case of a total defeasance, or in the case of a partial defeasance, relating to the Release Price of each Property being released (together with all accrued and unpaid interest on the principal amount being so defeasedv), and such defeasance shall be undertaken in accordance with the terms and conditions of the Note, and Mezzanine Lender shall have received all amounts required to be paid to it in connection with such Release under the Mezzanine Loan Documents;
(Dvi) If required by any Rating Agency, the Borrowers at their sole cost and expense, in connection with any partial defeasance, Borrower shall have delivered to Lender, one paid or more endorsements to the Title Policies delivered to reimbursed Lender on the date hereof in connection with the Mortgages insuring that, after giving effect to such Release, (i) the Liens created hereby and thereby and insured under the Title Policies are first priority Liens on the respective remaining Properties subject only to the Permitted Encumbrances applicable to the remaining Properties and (ii) that the Title Policies remain in full force and effect and unaffected by such Release;
(E) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) shall be equal to or greater than the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) in effect at Closing, or immediately prior to the Release, whichever is greater;
(F) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 of any Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance of the Loan except pursuant to a total defeasance;
(G) The Borrowers shall pay for all reasonable out-of-pocket costs and expenses actually incurred by Xxxxxx (including, without limitation, title search costs and endorsement premiums and reasonable attorney's actually incurred attorneys’ fees and disbursements);
(vii) incurred by LenderTo the extent any Lease at an Individual Property that will remain collateral for the Loan following the release of such Release Property and the related Mezzanine A Collateral is cross-defaulted with any Lease at the Release Property, Servicerthe Lease for the Individual Property that will remain collateral for the Loan following such release shall be amended to remove such cross-default;
(viii) Subsequent to such release, each Individual Mortgage Borrower, Mezzanine A Borrower, each SPE Component Entity, any Mezzanine A SPE Component Entity and any Mortgage SPE Component Entity shall continue to be a Special Purpose Entity pursuant to, and any custodian employed by Lender or Servicerin accordance with, in connection with the ReleaseArticle 5 hereof; and
(Hix) Immediately following such Property Release, each released Property will be owned by a Person other than the Borrowers, except as otherwise permitted in connection Borrower has provided Lender with any full or partial defeasance of the Loan in accordance with the terms and conditions of the Note. Upon satisfaction of the above conditions, Lender shall effectuate the following (hereinafter referred to as a "PROPERTY RELEASE"): the security interest of Lender under the evidence that Mortgage and other Loan Documents relating to each released Property shall be released and Lender will execute and deliver any agreements reasonably requested by the Borrowers to release and terminate or reassign, at the Borrowers' option, the Mortgage, the applicable Assignment of Leases, and financing statements as to each released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment Borrower has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon satisfied the release and termination or reassignment of Lender's security interest conditions set forth in the Mortgage relating to a released Property all references herein to Loan Documents and that Mezzanine A Borrower has satisfied the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. In addition, promptly after consummation of any such Property Release and Lender's receipt of release conditions set forth in the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the BorrowersMezzanine A Loan Documents.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Industrial Logistics Properties Trust)
Release of Properties. On one The Borrower may request, upon not less than 10 Business Days prior notice to the Agent, that any Collateral Property, or more occasionsportion thereof, the Borrowers may obtain the release (each, a "RELEASE") of one or more Properties be released from the Lien of Liens created by the Collateral Documents applicable Mortgage(s) in connection with a partial or total defeasance of the Loan subject to the conditions of the Note and subject to the satisfaction of the following conditions:
(A) Lender shall have received from the Borrowers at least fifteen (15) days prior written notice of the date proposed for such thereto, which release (the "RELEASE DATEProperty Release") which notice is revocable;
(B) No Event shall be effected by the Agent if the Agent determines all of Default shall have occurred and be continuing the following conditions are satisfied as of the date of such notice and the Release Date;Property Release:
(Ca) On the date proposed for such Release, the Borrowers shall defease all or a portion of the Loan by delivering a Defeasance Deposit (as defined in the Note) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the Note) for the entire principal amount of the Loan in the case of a total defeasance, or in the case of a partial defeasance, relating subject to the Release Price terms of each Property being released (together with all accrued and unpaid interest on the principal amount being so defeased)Section 11.4., and such defeasance shall be undertaken in accordance with the terms and conditions no Default or Event of the Note, and Mezzanine Lender shall have received all amounts required to be paid to it in connection with such Release under the Mezzanine Loan Documents;
(D) If required by any Rating Agency, the Borrowers at their sole cost and expense, in connection with any partial defeasance, shall have delivered to Lender, one Default exists or more endorsements to the Title Policies delivered to Lender on the date hereof in connection with the Mortgages insuring that, will exist immediately after giving effect to such Release, (i) Property Release and the Liens created hereby and thereby and insured under reduction in the Title Policies are first priority Liens on Borrowing Base by reason of the respective remaining Properties subject only to the Permitted Encumbrances applicable to the remaining Properties and (ii) that the Title Policies remain in full force and effect and unaffected by release of such ReleaseProperty;
(Eb) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio Borrower shall have delivered to the Agent a Borrowing Base Certificate and the Debt Yield Agent shall have determined to its satisfaction (which determination may be based upon a trailing twelve (12) month period) shall be equal on Appraisals ordered pursuant to or greater than the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) in effect at Closing, or immediately prior to the Release, whichever is greater;
(F) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 of any Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date4.3.(b)(iii)), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of that the original outstanding principal balance of the Loan except pursuant Advances, together with the Letter of Credit Liabilities, will not exceed the Borrowing Base after giving effect to a total defeasancesuch request and any prepayment to be made and/or the acceptance of any Property as an additional or replacement Collateral Property to be given concurrently with such request;
(Gc) The Borrowers the Borrower shall pay have delivered to the Agent all reasonable out-of-pocket costs documents and expenses (instruments reasonably requested by the Agent in connection with such Property Release including, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursementsthe following:
(i) incurred by Lenderin the case of the release of a portion of a Collateral Property, Servicera survey of such portion;
(ii) the quitclaim deed, and any custodian employed by Lender release, partial release or Servicer, in connection with the other instrument to be used to effect such Property Release; and
(Hiii) Immediately following an appropriate endorsement to the mortgagee title insurance policy in effect with respect to the affected Collateral Property;
(d) after giving effect to such Property Release, each released of Post Oak Mall, Georgia Square Mall, Madison Square Mall, and Richland Mall (or any regional mall which is a Collateral Property and is determined by the Requisite Lenders to be of equivalent financial strength to any of the foregoing malls), will be remain as a Collateral Property in the Borrowing Base; provided, however, if at the time of such Property Release, the Collateral Properties consist only of the malls referred to above, then the provisions of this clause (d) shall not apply; and
(e) the Agent shall have reasonably determined that the market values of the remaining Collateral Properties have not materially deteriorated since the respective dates of acceptance as Collateral Properties. In connection with any Property Release of an entire Collateral Property owned by a Person other than Subsidiary, the Borrowers, except Agent shall release such Subsidiary from the Guaranty to which it is a party so long as otherwise permitted no Default or Event of Default shall then be in connection with any full existence or partial defeasance of the Loan in accordance with the terms and conditions of the Note. Upon satisfaction of the above conditions, Lender shall effectuate the following (hereinafter referred to would occur as a "PROPERTY RELEASE"): the security interest result of Lender under the Mortgage and other Loan Documents relating to each released such release. Except as set forth in this Section 4.2., no Collateral Property shall be released and Lender will execute and deliver any agreements reasonably requested from the Liens created by the Borrowers to release and terminate or reassign, at the Borrowers' option, the Mortgage, the Collateral Documents applicable Assignment of Leases, and financing statements as to each released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage relating to a released Property all references herein to the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. In addition, promptly after consummation of any such Property Release and Lender's receipt of the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the Borrowersthereto.
Appears in 1 contract
Release of Properties. On one Except as set forth in Section 2.7(b) or more occasionsthis Section 2.10, no repayment or prepayment of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the Borrowers release of any lien of the Pledge Agreement.
(a) At any time in connection with an arms-length transfer to a third-party Person which is not an Affiliate of Borrower, Borrower may (x) cause Mortgage Borrower to obtain the release of an Individual Property from the lien of the Security Instrument thereon and related Mortgage Loan Documents in accordance with the Mortgage Loan Documents (eacheach such Individual Property, a "RELEASE"“Release Property”) and (y) obtain the release of one or more Properties the Collateral related to the owner of such Release Property from the Lien lien of the applicable Mortgage(s) in connection with a partial or total defeasance Pledge Agreement thereon and related Loan Documents and the release of Borrower’s obligations under the Loan subject Documents with respect to the conditions of the Note such Release Property and subject related Collateral (other than those expressly stated to survive), upon the satisfaction of each of the following conditions:
(Ai) Borrower shall deliver notice to Lender shall have received from the Borrowers at least fifteen (15) days prior written notice of the date proposed for release of such release (Release Property and the "RELEASE DATE") which notice is revocablerelated Collateral;
(Bii) No no Event of Default shall have occurred and be continuing on the date that the Release Property and the related Collateral is released from the lien of the Security Instrument or the Pledge Agreement, as applicable, thereon other than as expressly permitted below;
(iii) Borrower shall have paid to Lender the applicable Release Amount together with any Yield Maintenance Premium then required (if any);
(iv) Borrower shall submit to Lender, not less than ten (10) days prior to the date of such release, a release or assignment of lien (and related Loan Documents) for such Collateral related to the Release Property for execution by Xxxxxx. Such release or assignment shall be in a form appropriate in each applicable jurisdiction and that would be reasonably satisfactory to a prudent lender. In addition, Borrower shall provide all documentation Lender reasonably requires to be delivered by Borrower in connection with such release or assignment, as applicable, together with an Officer’s Certificate certifying that such documentation (A) will effect such release or assignment in accordance with the terms of this Agreement, and (B) will not impair or otherwise adversely affect the liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the parties to the Loan Documents and the Collateral subject to the Loan Documents not being released);
(v) After giving effect to such release, as of the date of such notice release, the Debt Yield shall not be less than the greater of Closing Date Debt Yield and the Release Date;
Debt Yield immediately prior to the release; provided, however, that in order to satisfy the Debt Yield requirement set forth in this clause (Cv) On the date proposed for such Release, the Borrowers shall defease all or Borrower may make a prepayment of a portion of the Loan by delivering a Defeasance Deposit (as defined in the Noteaccordance with Section 2.7(a) hereof in an amount necessary sufficient to pay all Scheduled Defeasance Payments satisfy the Debt Yield requirement set forth in this clause (as defined in the Note) for the entire principal amount of the Loan in the case of a total defeasance, or in the case of a partial defeasance, relating to the Release Price of each Property being released (together with all accrued and unpaid interest on the principal amount being so defeasedv), and such defeasance shall be undertaken in accordance with the terms and conditions of the Note, and Mezzanine Lender shall have received all amounts required to be paid to it in connection with such Release under the Mezzanine Loan Documents;
(Dvi) If required by any Rating Agency, the Borrowers at their sole cost and expense, in connection with any partial defeasance, Borrower shall have delivered to Lender, one paid or more endorsements to the Title Policies delivered to reimbursed Lender on the date hereof in connection with the Mortgages insuring that, after giving effect to such Release, (i) the Liens created hereby and thereby and insured under the Title Policies are first priority Liens on the respective remaining Properties subject only to the Permitted Encumbrances applicable to the remaining Properties and (ii) that the Title Policies remain in full force and effect and unaffected by such Release;
(E) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) shall be equal to or greater than the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) in effect at Closing, or immediately prior to the Release, whichever is greater;
(F) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 of any Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance of the Loan except pursuant to a total defeasance;
(G) The Borrowers shall pay for all reasonable out-of-pocket costs and expenses actually incurred by Xxxxxx (including, without limitation, title search costs and endorsement premiums and reasonable attorney's actually incurred attorneys’ fees and disbursements);
(vii) incurred by LenderTo the extent any Lease at an Individual Property that will remain collateral for the Loan following the release of such Release Property and the related Collateral is cross-defaulted with any Lease at the Release Property, Servicerthe Lease for the Individual Property that will remain collateral for the Loan following such release shall be amended to remove such cross-default;
(viii) Subsequent to such release, each Individual Mortgage Borrower, Borrower, each SPE Component Entity and any Mortgage SPE Component Entity shall continue to be a Special Purpose Entity pursuant to, and any custodian employed by Lender or Servicerin accordance with, in connection with the ReleaseArticle 5 hereof; and
(Hix) Immediately following such Property Release, each released Property will be owned by a Person other than the Borrowers, except as otherwise permitted in connection Borrower has provided Lender with any full or partial defeasance of the Loan in accordance with the terms and conditions of the Note. Upon satisfaction of the above conditions, Lender shall effectuate the following (hereinafter referred to as a "PROPERTY RELEASE"): the security interest of Lender under the evidence that Mortgage and other Loan Documents relating to each released Property shall be released and Lender will execute and deliver any agreements reasonably requested by the Borrowers to release and terminate or reassign, at the Borrowers' option, the Mortgage, the applicable Assignment of Leases, and financing statements as to each released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment Borrower has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon satisfied the release and termination or reassignment of Lender's security interest conditions set forth in the Mortgage relating to a released Property all references herein to Loan Documents and that Mezzanine B Borrower has satisfied the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. In addition, promptly after consummation of any such Property Release and Lender's receipt of release conditions set forth in the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the BorrowersMezzanine B Loan Documents.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Industrial Logistics Properties Trust)
Release of Properties. On one or more occasions, the Borrowers A Property may obtain the release (each, a "RELEASE") of one or more Properties be released from the Lien lien of the applicable Mortgage(s) in connection with a partial or total defeasance of the Loan subject to the conditions of the Note and subject to the satisfaction Mortgage without another Multifamily Residential Property being substituted therefor if each of the following conditionsconditions are met:
(Aa) Lender Owner shall have received either redeem or otherwise remove Bonds from the Borrowers at least fifteen (15) days prior written notice Xxxxxx Xxx Credit Facility and/or post cash collateral in a manner acceptable to Xxxxxx Mae in its discretion, in either case in an amount equal to 110% of the date proposed for Allocable Facility Amount of the Released Property (the "REQUIRED FACILITY REDUCTION"); the following shall be credited toward such Required Facility Reduction: (i) if the Released Property is a Bond Property, the amount of Bonds outstanding with respect to such Bond Property immediately prior to such release (provided, that, the requirements of section 4.3(c) have been satisfied), plus (ii) the amount of any other Bonds redeemed by Owner to obtain such release, plus (iii) the amount of any cash collateral ("RELEASE DATEFACILITY REDUCTION CASH COLLATERAL") which notice that has been deemed acceptable by Xxxxxx Xxx and posted by Owner to obtain such release, plus (iv) if the Released Property is revocablean Additional Property, the amount of any Facility Reduction Credit that Owner authorizes and instructs Xxxxxx Mae to apply to such Required Facility Reduction;
(Bb) No Event of Default or Potential Event of Default shall have occurred and be continuing as of the date of such notice and the Release Datecontinuing;
(Cc) On If the Released Property is a Bond Property, then the Related Xxxxxx Xxx Pass-Through Certificate shall terminate on or before the date proposed for the Released Property is released from the lien of any Related Mortgage;
(d) Owner shall cause the Released Property to be immediately conveyed by Owner to AIMCO OP or such Release, the Borrowers shall defease all or a portion of the Loan by delivering a Defeasance Deposit other purchaser as Owner may determine;
(as defined in the Notee) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the Note) for the entire principal amount of the Loan in the case of a total defeasance, or in the case of a partial defeasance, All documentation relating to the Release Price of each Property being released (together with foregoing is acceptable to Xxxxxx Mae in all accrued respects, including legal opinions, release documentation and unpaid interest on any amendments to this Agreement or the principal amount being so defeased), and such defeasance shall be undertaken in accordance with the terms and conditions of the Note, and Mezzanine Lender shall have received all amounts required to be paid to it in connection with such Release under the Mezzanine Loan other Transaction Documents;; and
(Df) If required Owner shall pay, with respect to each Released Property, to Xxxxxx Xxx and Servicer, a due diligence fee plus all costs and expenses (including legal fees and expenses) reasonably incurred by any Rating Agency, the Borrowers at their sole cost and expense, in connection with any partial defeasance, shall have delivered to Lender, one Xxxxxx Mae or more endorsements to the Title Policies delivered to Lender on the date hereof Servicer in connection with the Mortgages insuring that, after giving effect to such Release, (i) the Liens created hereby and thereby and insured under the Title Policies are first priority Liens on the respective remaining Properties subject only to the Permitted Encumbrances applicable to the remaining Properties and (ii) that the Title Policies remain in full force and effect and unaffected by such Release;
(E) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) foregoing. Such amounts shall be equal to or greater than the Debt Service Coverage Ratio and the Debt Yield (based paid by Owner promptly upon a trailing twelve (12) month period) in effect at Closing, or immediately prior to the Release, whichever is greater;
(F) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 receipt of any Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance of the Loan except pursuant to a total defeasance;
(G) The Borrowers shall pay all reasonable out-of-pocket costs and expenses (including, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursements) incurred by Lender, Servicerinvoices therefor, and any custodian employed by Lender or Servicer, in connection with the Release; and
(H) Immediately following such Property Release, each released Property will be owned by a Person other than the Borrowers, except as otherwise permitted in connection with any full or partial defeasance of the Loan in accordance with the terms and conditions of the Note. Upon satisfaction of the above conditions, Lender shall effectuate the following (hereinafter referred to as a "PROPERTY RELEASE"): the security interest of Lender under the Mortgage and other Loan Documents relating to each released Property shall be payable regardless of whether the property is or is not (for any reason) ultimately released and Lender will execute and deliver any agreements reasonably requested by from the Borrowers to release and terminate or reassign, at the Borrowers' option, the lien of a Mortgage, the applicable Assignment of Leases, and financing statements as to each released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage relating to a released Property all references herein to the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. In addition, promptly after consummation of any such Property Release and Lender's receipt of the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the Borrowers.
Appears in 1 contract
Samples: Reimbursement Agreement (Apartment Investment & Management Co)
Release of Properties. On one or more occasions, the Borrowers may obtain the The release (each, a "RELEASE") of one or more Properties price and other conditions precedent to Lender's obligation to release any Property from the Lien of the Mortgage on such Property shall be modified as hereinafter set forth and, in connection therewith, Section 2.4.1
(a) of the Existing Loan Agreement, shall be, and is hereby, amended as follows:
(a) subsection (i) thereof shall be, and is hereby, amended and restated in its entirety as follows:
(i) Borrower shall have paid to Lender the "Release Price" (as such quoted term is hereinafter defined). For purposes hereof, the term "Release Price" shall mean the greater of the following amounts, as determined by Lender: (a) 125% of the Allocated Amount for the Property proposed to be released, as set forth in the Schedule of Allocated Amounts attached hereto and incorporated herein, and (b) 100% of the "Net Proceeds" (as such quoted term is hereinafter defined) for the Property proposed to be released. For purposes hereof, the term "Net Proceeds" shall mean (a) in the case of the sale or other transfer, direct or indirect, of the Property proposed to be released, provided that such sale or transfer is for the entirety of the Property, the greater of (x) the Release Amount for such Property, as set forth in the Schedule of Release Amounts attached hereto and incorporated herein (the "Release Amount Schedule"), and (y) 100% of the gross proceeds of such sale or transfer, less reasonable and customary expenses actually incurred by the applicable Mortgage(s) Borrower in connection with a partial such sale or total defeasance transfer, said expenses, however, in no event to exceed four (4%) percent of said gross proceeds, or (b) in the case of the Loan subject to the conditions refinancing, direct or indirect, of the Note and subject Property proposed to be released, provided that such refinancing is for the satisfaction entirety of the following conditions:
Property, the greater of (Ax) the Release Amount for such Property, as set forth in the Release Amount Schedule, and (y) 100% of the gross proceeds of such refinancing, less reasonable and customary expenses actually incurred by the applicable Borrower in connection with such refinancing, said expenses, however, in no event to exceed one (1%) percent of said gross proceeds. In connection with the foregoing, Lender shall have received from Borrowers such information as Lender may require in order to calculate the Borrowers appropriate Release Price, all in form acceptable to Lender and at least fifteen (15) days prior written notice of the date proposed for such release (the "RELEASE DATE") which notice is revocable;
(B) No Event of Default shall have occurred and be continuing as of the date of such notice and the Release Date;
(C) On the date proposed for such Release, the Borrowers shall defease all or a portion of the Loan by delivering a Defeasance Deposit (as defined in the Note) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the Note) for the entire principal amount of the Loan in the case of a total defeasance, or in the case of a partial defeasance, relating to the Release Price of each Property being released (together with all accrued and unpaid interest on the principal amount being so defeased), and such defeasance shall be undertaken in accordance with the terms and conditions of the Note, and Mezzanine Lender shall have received all amounts required to be paid to it in connection with such Release under the Mezzanine Loan Documents;
(D) If required by any Rating Agency, the Borrowers at their Borrowers' sole cost and expense, in connection with any partial defeasanceand accompanied by an Officer's Certificate stating that all such information is true, shall have delivered to Lender, one or more endorsements to the Title Policies delivered to Lender on the date hereof in connection with the Mortgages insuring that, after giving effect to such Release, (i) the Liens created hereby correct and thereby and insured under the Title Policies are first priority Liens on the respective remaining Properties subject only to the Permitted Encumbrances applicable to the remaining Properties and (ii) that the Title Policies remain in full force and effect and unaffected by such Releasecomplete;
(E) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) shall be equal to or greater than the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) in effect at Closing, or immediately prior to the Release, whichever is greater;
(F) Notwithstanding the foregoing, the Borrowers may not obtain the Release under this Section 11.4 of any Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) of the original principal balance of the Loan except pursuant to a total defeasance;
(G) The Borrowers shall pay all reasonable out-of-pocket costs and expenses (including, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursements) incurred by Lender, Servicer, and any custodian employed by Lender or Servicer, in connection with the Release; and
(H) Immediately following such Property Release, each released Property will be owned by a Person other than the Borrowers, except as otherwise permitted in connection with any full or partial defeasance of the Loan in accordance with the terms and conditions of the Note. Upon satisfaction of the above conditions, Lender shall effectuate the following (hereinafter referred to as a "PROPERTY RELEASE"): the security interest of Lender under the Mortgage and other Loan Documents relating to each released Property shall be released and Lender will execute and deliver any agreements reasonably requested by the Borrowers to release and terminate or reassign, at the Borrowers' option, the Mortgage, the applicable Assignment of Leases, and financing statements as to each released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage relating to a released Property all references herein to the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. In addition, promptly after consummation of any such Property Release and Lender's receipt of the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the Borrowers.
Appears in 1 contract
Samples: Master Modification Agreement (Prime Retail Inc/Bd/)
Release of Properties. On one or more occasionsFrom time to time after the Full Collateralization Date (provided, however, that prior to the Borrowers Full Collateralization Date, Borrower may obtain the release (request that non-income producing outparcels [each, a "RELEASENon-Income Producing Outparcel") of one or more Properties ] be released from the Lien of created by the Security Documents applicable Mortgage(s) in connection with a partial or total defeasance of the Loan subject to the conditions of the Note thereto, conditioned upon and subject to (i) the satisfaction terms and conditions of this Section 4.2, and (ii) payment by Borrower to the Agent [for the benefit of the following conditions:
(A) Lender shall have Lenders] of an amount equal to 100% of the net proceeds [after deduction of normal and customary closing costs and expenses] received by the Borrower or the Subsidiary owning such Non-Income Producing Outparcel from the Borrowers at least fifteen sale of such Non-Income Producing Outparcel, and (15iii) days approval of such release by the Administrative Agent) the Borrower may request, upon not less than ten (10) Business Days prior written notice of to the date proposed for such Administrative Agent, that any Borrowing Base Property, or portion thereof, be released from the Liens created by the Security Documents applicable thereto, which release (the "RELEASE DATEProperty Release") which notice is revocable;
(B) No Event shall be effected by the Administrative Agent if the Administrative Agent determines all of Default shall have occurred and be continuing the following conditions are satisfied as of the date of such notice Property Release:
(a) Subject to the terms of Section 11.10., no Default or Event of Default exists or will exist immediately after giving effect to such Property Release and the Release Datereduction in the Borrowing Base by reason of the release of such Property;
(Cb) On The Borrower shall have delivered to the date proposed for Administrative Agent a Borrowing Base Certificate demonstrating on a pro forma basis, and the Administrative Agent shall have determined to its satisfaction (which determination may be based on Appraisals ordered pursuant to Section 4.3.(b)(iii)), that the outstanding principal balance of the Loans will not exceed the Borrowing Base after giving effect to such Releaserequest and any prepayment to be made and/or the acceptance of any Property as an additional or replacement Borrowing Base Property to be given concurrently with such request;
(c) The Borrower shall have delivered to the Administrative Agent all documents and instruments reasonably requested by the Administrative Agent in connection with such Property Release including, without limitation, the Borrowers shall defease all or a portion of the Loan by delivering a Defeasance Deposit following:
(as defined in the Notei) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the Note) for the entire principal amount of the Loan in the case of the release of a total defeasanceportion of a Borrowing Base Property, a survey of such portion;
(ii) the quitclaim deed, release, partial release or other instrument to be used to effect such Property Release; and
(iii) an appropriate endorsement to the mortgagee title insurance policy in effect with respect to the affected Borrowing Base Property;
(d) after giving effect to such Property Release, each of Eastgate Mall, Parkdale Mall & Crossing, Xxxxxx Mall and York Mall (or any regional mall which is a Borrowing Base Property and is determined by the Requisite Lenders, which for purposes of this subsection (d) must include the Lender then acting as Administrative Agent so long as it is not then a Defaulting Lender, to be of equivalent financial strength to any of the foregoing malls), will remain as a Borrowing Base Property in the case Borrowing Base; provided, however, if at the time of a partial defeasancesuch Property Release, relating the Borrowing Base Properties consist only of the malls referred to above, then the Release Price provisions of each Property being this clause (d) shall not apply; provided further, that Borrower may request that one or more Non-Income Producing Outparcels located at any of the foregoing malls be released from the Lien created by the Security Documents applicable thereto, conditioned upon and subject to (together with all accrued and unpaid interest on the principal amount being so defeased), and such defeasance shall be undertaken in accordance with i) the terms and conditions of the Notethis Section 4.2, and Mezzanine Lender shall have received all amounts required to be paid to it in connection with such Release under the Mezzanine Loan Documents;
(D) If required by any Rating Agency, the Borrowers at their sole cost and expense, in connection with any partial defeasance, shall have delivered to Lender, one or more endorsements to the Title Policies delivered to Lender on the date hereof in connection with the Mortgages insuring that, after giving effect to such Release, (i) the Liens created hereby and thereby and insured under the Title Policies are first priority Liens on the respective remaining Properties subject only to the Permitted Encumbrances applicable to the remaining Properties and (ii) that approval of such release by the Title Policies remain in full force Administrative Agent; and effect and unaffected by (iii) if such Release;
(E) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) shall be equal to or greater than the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month period) in effect at Closing, or immediately release is prior to the ReleaseFull Collateralization Date, whichever is greater;
(F) Notwithstanding payment by Borrower to the foregoing, Agent [for the Borrowers may not obtain the Release under this Section 11.4 of any Property or Properties which individually, or in the aggregate (with all Releases since the Closing Date), have an aggregate Allocated Loan Amount of more than thirty percent (30%) benefit of the original principal balance Lenders] of an amount equal to 100% of the Loan except pursuant to a total defeasance;
(G) The Borrowers shall pay all reasonable out-of-pocket net proceeds [after deduction of normal and customary closing costs and expenses (including, without limitation, title search costs and endorsement premiums and reasonable attorney's fees and disbursements) incurred expenses] received by Lender, Servicer, and any custodian employed by Lender the Borrower or Servicer, in connection with the ReleaseSubsidiary owning such Non-Income Producing Outparcel from the sale of such Non-Income Producing Outparcel; and
(He) Immediately following such The Administrative Agent shall have reasonably determined that the market values of the remaining Borrowing Base Properties have not materially deteriorated since the respective dates of acceptance as Borrowing Base Properties. In connection with any Property Release, each released Release of an entire Borrowing Base Property will be owned by a Person other than Subsidiary, the Borrowers, except Administrative Agent shall release such Subsidiary from the Guaranty to which it is a party so long as otherwise permitted no Default or Event of Default shall then be in connection with any full existence or partial defeasance of the Loan in accordance with the terms and conditions of the Note. Upon satisfaction of the above conditions, Lender shall effectuate the following (hereinafter referred to would occur as a "PROPERTY RELEASE"): the security interest result of Lender under the Mortgage and other Loan Documents relating to each released such release. Except as set forth in this Section 4.2., no Borrowing Base Property shall be released and Lender will execute and deliver any agreements reasonably requested from the Liens created by the Borrowers to release and terminate or reassign, at the Borrowers' option, the Mortgage, the Security Documents applicable Assignment of Leases, and financing statements as to each released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage relating to a released Property all references herein to the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. In addition, promptly after consummation of any such Property Release and Lender's receipt of the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the Borrowersthereto.
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Release of Properties. On one or Upon Borrower’s written request which shall include all materials and information necessary to evaluate such request, to be received with not less than thirty (30) days prior notice, Lender shall release not more occasions, than two (2) Individual Properties whose original allocated Individual Loan principal balances collectively do not exceed $50,000,000.00 (except if the Borrowers may obtain the only release is as set forth in subsection (each, a "RELEASE"i) of one or more Properties below) from the Lien of the applicable Mortgage(s) in connection with a partial or total defeasance lien of the Loan subject to the conditions of the Note and subject to the satisfaction of Documents (“Release Property”), upon the following terms and conditions:
(Aa) Lender shall have received from At the Borrowers at least fifteen (15) days prior written notice time of the date proposed for such release (request and the "RELEASE DATE") which notice is revocable;
(B) No time of the Release, there shall be no Event of Default under the Loan Documents, and there shall exist no condition or state of facts which with the passage of time or the giving of notice or both, would constitute a default under the Loan Documents (except for any such default relating solely to the Release Property which, by its very nature, will be cured by the requested Release).
(b) Any such request may be made beginning six (6) months after the date hereof and any such partial Release must occur prior to the last six (6) months prior to the Maturity Date.
(c) Each Release Property released shall be the entire Individual Property identified with the applicable Individual Loan.
(d) For each Release Property, Borrower shall have occurred and be continuing as made the “Release Price” payment to Lender, in an amount equal to 110% of the date principal balance of the Individual Loan applicable to the Release Property, together with a prepayment premium (based on the Release Price).
(e) The Release Price shall be applied to pay in full the principal balance due with respect to the Individual Loan applicable to the Release Property and Borrower shall, in addition, pay all amounts due with respect to such Release Price with respect to interest, prepayment premium and reasonable costs and expenses. Lender shall apply the portion of any Release payment which is in excess of the balance of the Individual Loan applicable to the Release Property to any Individual Loan or Individual Loans, in Lender’s sole discretion, and, upon Borrower’s written request, Lender shall provide Borrower with Lender’s allocation of such notice and the amounts thirty days prior to such Release Date;or ten (10) days after such request, if later.
(Cf) On At the date proposed for such time of the Release, the Borrowers shall defease all or a portion of the Loan by delivering a Defeasance Deposit (as defined in the Note) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the Note) for the entire principal amount of the Loan in the case of a total defeasanceDebt Service Coverage, or in the case of a partial defeasance, relating to the Release Price of each Property being released (together calculated with all accrued and unpaid interest on the principal amount being so defeased), and such defeasance shall be undertaken in accordance with the terms and conditions of the Note, and Mezzanine Lender shall have received all amounts required to be paid to it in connection with such Release under the Mezzanine Loan Documents;
(D) If required by any Rating Agency, the Borrowers at their sole cost and expense, in connection with any partial defeasance, shall have delivered to Lender, one or more endorsements to the Title Policies delivered to Lender on the date hereof in connection with the Mortgages insuring that, after giving effect to such Release, (i) the Liens created hereby and thereby and insured under the Title Policies are first priority Liens on the respective remaining Properties subject only to the Permitted Encumbrances applicable respect to the remaining Properties and (ii) that excluding the Title Policies remain in full force and effect and unaffected by such Release;
(E) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month periodReleased Property) shall be equal to or greater than (i) the Debt Service Coverage Ratio and with respect to all of the Debt Yield Properties (based upon a trailing twelve (12including the Released Property) month period) in effect at Closing, or immediately prior to such Release, and, in any event, (ii) 2.00 to 1.00. In the event the Debt Service Coverage of the remaining Properties (as determined by Lender in its sole discretion) falls below the required level, Borrower shall have the right, subject to payment of the Prepayment Premium calculated in accordance with the provisions set forth in the Notes, to pay Lender the amount necessary to increase the Debt Service Coverage of the remaining Properties to the required level.
(g) At the time of the Release, whichever is greater;the Loan to Value Ratio, calculated with respect to the remaining Properties (excluding the Released Property), does not exceed the lesser of (1) thirty seven percent (37%) or (2) the Loan to Value Ratio of the entire Properties (including the Released Property) immediately prior to such Release. In the event the Loan to Value Ratio of the remaining Properties (as determined by Lender in its sole discretion) exceeds the required level, Borrower shall have the right, subject to payment of the Prepayment Premium calculated in accordance with the provisions set forth in the Notes, to pay Lender the amount necessary to reduce the loan to value ratio of the remaining Properties to the required level. Provided, however, if (i) the Prentice Hall Renewal for a minimum rental rate equal to or in excess of the Prentice Hall Full Release Rental has occurred in accordance with the requirements of Section 3.4(a) and the New Cingular Wireless Renewal for a minimum rental rate equal to or in excess of the New Cingular Wireless Full Release Rental has occurred in accordance with the requirements of Section 3.4(b), or (ii) the Prentice Hall Renewal for a minimum rental rate equal to or in excess of the Prentice Hall Full Release Rental has occurred in accordance with the requirements of Section 3.4(a) and all of the New Cingular Wireless Space has been leased pursuant to New Cingular Wireless Replacement Leases in accordance with the New Cingular Wireless Replacement Lease Requirements for a minimum rental rate equal to or in excess of the New Cingular Wireless Full Release Rental in accordance with the requirements of Section 3.4(d), or (iii) the New Cingular Wireless Renewal for a minimum rental rate equal to or in excess of the New Cingular Wireless Full Release Rental has occurred in accordance with the requirements of Section 3.4(b) and all of the Prentice Hall Space has been leased pursuant to Prentice Hall Replacement Leases in accordance with the Prentice Hall Replacement Lease Requirements for a minimum rental rate equal to or in excess of the Prentice Hall Full Release Rental in accordance with the requirements of Section 3.4(c), or (iv) all of the Prentice Hall Space has been leased pursuant to Prentice Hall Replacement Leases in accordance with the Prentice Hall Replacement Lease Requirements for a minimum rental rate equal to or in excess of the Prentice Hall Full Release Rental in accordance with the requirements of Section 3.4(c), and all of the New Cingular Wireless Space has been leased pursuant to New Cingular Wireless Replacement Leases in accordance with the New Cingular Wireless Replacement Lease Requirements for a minimum rental rate equal to or in excess of the New Cingular Wireless Full Release Rental in accordance with the requirements of Section 3.4(d), then the percentage listed in (g) (1) above shall be increased from thirty seven percent (37%) to forty-two (42%).
(Fh) Notwithstanding In no event will Lender be required to release more than two (2) Individual Properties in total during the foregoing, term of the Borrowers may not obtain Loan (except as and only upon the Release under this Section 11.4 of any Property or Properties which individually, or conditions set forth in the aggregate (with all Releases since the Closing Datei) below), have an aggregate Allocated Loan Amount and, in addition, such releases shall not exceed releases of more than thirty percent (30%) property allocated to Loans comprising $50,000,000.00 of the original principal balance of the Loan except pursuant to a total defeasance;Loan.
(Gi) The Borrowers Unless otherwise agreed to by Lender in its sole discretion, the Individual Properties known as Mxxx-Xxxx Centre VII, Mxxx-Xxxx Centre III and Mxxx-Xxxx Centre II (collectively, the “Tied Properties”) will not be eligible for partial releases (if at such time any of the leases in such Tied Properties have any right to expand into, or rights of refusal or offer in, any building located on another Tied Property, unless such rights been amended to terminate and eliminate such rights as a portion of the contractual rights of such Lease, and to provide that the Tenant’s recourse shall only be as a contractual right, of public record, with the owner of such Tied Property that is to be released in such release), unless all of such Properties are released at the same time (or substituted as to some Tied Properties and released as to all the other Tied Properties at such time), and provided that the aggregate balance of all of the Loans is not less than $85,000,000.00 following such Release. Under this provision Lender shall consent to the Release of all three Tied Properties (Mxxx-Xxxx Centre VII, Mxxx-Xxxx Centre III and Mxxx-Xxxx Centre II) if no other releases or substitutions of previously occurred, but Lender, but Lender will not consent to any additional Releases or Substitutions during the Loan term.
(j) For each Release Property requested to be released, Borrower shall pay to Lender a release fee of $15,000.00 which shall be non-refundable and payable to Lender at the time of request for Release.
(k) Borrower shall pay to Lender all reasonable out-of-pocket escrow, closing and recording costs and expenses (including, without limitationbut not limited to, title search costs the cost of preparing and endorsement premiums delivering any reconveyance documentation and reasonable attorney's modification of the Loan Documents, including legal fees and disbursements) costs, the cost of any title insurance endorsements that Lender may require, any expenses incurred by Lender, Servicer, and any custodian employed by the Lender or Servicer, in connection with the Release; andpartial release, and any sums then due and payable under the Loan Documents.
(Hl) Immediately following such Property ReleaseSuch other terms and conditions as Lender shall reasonably require. Notwithstanding anything to the contrary in this Section 5 and/or Section 6 regarding Substitution of Collateral, each released Property will be owned by Borrower shall only have the right to a Person other than combined cumulative total (during the Borrowersentire term of the Loan) of two (2) Releases and Substitutions, except as otherwise permitted in connection with any full or partial defeasance of if the Loan Release is in accordance with the terms and conditions set forth in subsection (i) of this Section 5 or if the Note. Upon satisfaction Substitution is in accordance with the conditions set forth in subsection (o) of the above conditions, Lender shall effectuate the following (hereinafter referred to as a "PROPERTY RELEASE"): the security interest of Lender under the Mortgage and other Loan Documents relating to each released Property shall be released and Lender will execute and deliver any agreements reasonably requested by the Borrowers to release and terminate or reassign, at the Borrowers' option, the Mortgage, the applicable Assignment of Leases, and financing statements as to each released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage relating to a released Property all references herein to the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. In addition, promptly after consummation of any such Property Release and Lender's receipt of the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the BorrowersSection 6.
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Release of Properties. On one or Upon Borrower’s written request which shall include all materials and information necessary to evaluate such request, to be received with not less than thirty (30) days prior notice, Lender shall release not more occasionsthan two (2) Properties (not to exceed releases of property allocated to Loans comprising $50,000,000.00 of the original principal balance of the Loan, except if the Borrowers may obtain the only release is as set forth in subsection (each, a "RELEASE"i) of one or more Properties below) from the Lien of the applicable Mortgage(s) in connection with a partial or total defeasance lien of the Loan subject to the conditions of the Note and subject to the satisfaction of Documents (“Release Property”), upon the following terms and conditions:
(Aa) Lender shall have received from At the Borrowers at least fifteen (15) days prior written notice time of the date proposed for such release (request and the "RELEASE DATE") which notice is revocable;
(B) No time of the Release, there shall be no Event of Default under the Loan Documents, and there shall exist no condition or state of facts which with the passage of time or the giving of notice or both, would constitute a default under the Loan Documents (except for any such default relating solely to the Release Property which, by its very nature, will be cured by the requested Release).
(b) Any such request may be made beginning six (6) months after the date hereof and any such partial Release must occur prior to the last six (6) months prior to the Maturity Date.
(c) Each Release Property released shall be the entire Property identified with the applicable Loan.
(d) For each Release Property, Borrower shall have occurred and be continuing as made the “Release Price” payment to Lender, in an amount equal to 110% of the date principal balance of the Loan applicable to the Release Property, together with a prepayment premium (based on the Release Price).
(e) The Release Price shall be applied to pay in full the principal balance due with respect to the Loan applicable to the Release Property and Borrower shall, in addition, pay all amounts due with respect to such Release Price with respect to interest, prepayment premium and reasonable costs and expenses. Lender shall apply the portion of any Release payment which is in excess of the balance of the Loan applicable to the Release Property to any Loan or Loans, in Lender’s sole discretion, and, upon Borrower’s written request, Lender shall provide Borrower with Lender’s allocation of such notice and the amounts thirty days prior to such Release Date;or ten (10) days after such request, if later.
(Cf) On At the date proposed for such time of the Release, the Borrowers shall defease all or a portion of the Loan by delivering a Defeasance Deposit (as defined in the Note) in an amount necessary to pay all Scheduled Defeasance Payments (as defined in the Note) for the entire principal amount of the Loan in the case of a total defeasanceDebt Service Coverage, or in the case of a partial defeasance, relating to the Release Price of each Property being released (together calculated with all accrued and unpaid interest on the principal amount being so defeased), and such defeasance shall be undertaken in accordance with the terms and conditions of the Note, and Mezzanine Lender shall have received all amounts required to be paid to it in connection with such Release under the Mezzanine Loan Documents;
(D) If required by any Rating Agency, the Borrowers at their sole cost and expense, in connection with any partial defeasance, shall have delivered to Lender, one or more endorsements to the Title Policies delivered to Lender on the date hereof in connection with the Mortgages insuring that, after giving effect to such Release, (i) the Liens created hereby and thereby and insured under the Title Policies are first priority Liens on the respective remaining Properties subject only to the Permitted Encumbrances applicable respect to the remaining Properties and Property (ii) that excluding the Title Policies remain in full force and effect and unaffected by such Release;
(E) Immediately following any Release in connection with any partial defeasance, both the Debt Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12) month periodReleased Property) shall be equal to or greater than (i) the Debt Service Coverage Ratio and with respect to all of the Debt Yield Property (based upon a trailing twelve (12including the Released Property) month period) in effect at Closing, or immediately prior to such Release, and, in any event, (ii) 4.00 to 1.00. In the event the Debt Service Coverage of the remaining Property (as determined by Lender in its sole discretion) falls below the required level, Borrower shall have the right, subject to payment of the Prepayment Premium calculated in accordance with the provisions set forth in the Notes, to pay Lender the amount necessary to increase the Debt Service Coverage of the remaining Property to the required level.
(g) At the time of the Release, whichever is greater;the Loan to Value Ratio, calculated with respect to the remaining Property (excluding the Released Property), does not exceed the lesser of (1) forty-two percent (42%) or (2) the Loan to Value Ratio of the entire Property (including the Released Property) immediately prior to such Release. In the event the Loan to Value Ratio of the remaining Property (as determined by Lender in its sole discretion) exceeds the required level, Borrower shall have the right, subject to payment of the Prepayment Premium calculated in accordance with the provisions set forth in the Notes, to pay Lender the amount necessary to reduce the loan to value ratio of the remaining Property to the required level.
(Fh) Notwithstanding In no event will Lender be required to release more than two (2) Properties in total during the foregoing, term of the Borrowers may not obtain Loan (except as and only upon the Release under this Section 11.4 of any Property or Properties which individually, or conditions set forth in the aggregate (with all Releases since the Closing Datei) below), have an aggregate Allocated Loan Amount and, in addition, such releases shall not exceed releases of more than thirty percent (30%) property allocated to Loans comprising $50,000,000.00 of the original principal balance of the Loan except pursuant to a total defeasance;Loan.
(Gi) The Borrowers Unless otherwise agreed to by Lender in its sole discretion, the Properties known as Xxxx Centre VII, Xxxx Centre III and Xxxx Centre II will not be eligible for partial releases (if at such time any of the leases in such Properties have any right to expand into, or rights of refusal or offer in, such other building, unless such rights been amended to terminate and eliminate such rights as a portion of the contractual rights of such Lease, and to provide that the Tenant’s recourse shall only be as a contractual right, of public record, with the owner of such expansion property), unless all of such Properties are released at the same time (or substituted as to some Properties and released as to some Properties at such time), and provided that the aggregate balance of all of the Loans is not less than $85,000,000.00 following such Release [under this provision Lender shall consent to the Release of all three Properties (Xxxx Centre VII, Xxxx Centre III and Xxxx Centre II), but will not consent to any additional Releases or Substitutions during the Loan term].
(j) For each Release Property requested to be released, Borrower shall pay to Lender a release fee of $15,000.00 which shall be non-refundable and payable to Lender at the time of request for Release.
(k) Borrower shall pay to Lender all reasonable out-of-pocket escrow, closing and recording costs and expenses (including, without limitationbut not limited to, title search costs the cost of preparing and endorsement premiums delivering any reconveyance documentation and reasonable attorney's modification of the Loan Documents, including legal fees and disbursements) costs, the cost of any title insurance endorsements that Lender may require, any expenses incurred by Lender, Servicer, and any custodian employed by the Lender or Servicer, in connection with the Release; andpartial release, and any sums then due and payable under the Loan Documents.
(Hl) Immediately following such Property ReleaseSuch other terms and conditions as Lender shall reasonably require. Notwithstanding anything to the contrary in this Section 5 and/or Section 6 regarding Substitution of Collateral, each released Property will be owned by Borrower shall only have the right to a Person other than combined cumulative total (during the Borrowersentire term of the Loan) of two (2) Releases and Substitutions, except as otherwise permitted in connection with any full or partial defeasance of if the Loan Release is in accordance with the terms and conditions set forth in subsection (i) of this Section 5 or if the Note. Upon satisfaction Substitution is in accordance with the conditions set forth in subsection (o) of the above conditions, Lender shall effectuate the following (hereinafter referred to as a "PROPERTY RELEASE"): the security interest of Lender under the Mortgage and other Loan Documents relating to each released Property shall be released and Lender will execute and deliver any agreements reasonably requested by the Borrowers to release and terminate or reassign, at the Borrowers' option, the Mortgage, the applicable Assignment of Leases, and financing statements as to each released Property; provided, that such release and termination or reassignment shall be without recourse to Lender and without any representation or warranty except that Lender shall be deemed to have represented that such release and termination or reassignment has been duly authorized and that it has not assigned or encumbered the Mortgage or the other Loan Documents relating to any released Property (except as contemplated hereby) and Lender shall return the originals of any Loan Documents that relate solely to each released Property to the Borrowers; provided, further, that upon the release and termination or reassignment of Lender's security interest in the Mortgage relating to a released Property all references herein to the Mortgage relating to such released Property shall be deemed deleted, except as otherwise provided herein with respect to indemnities. In addition, promptly after consummation of any such Property Release and Lender's receipt of the Defeasance Collateral, any and all Reserves designated as applicable to each released Property held by or on behalf of Lender shall be returned to the BorrowersSection 6.
Appears in 1 contract
