Restructuring of Loan. Lender, without in any way limiting Lender’s other rights hereunder, in its sole and absolute discretion, shall have the right at any time, at Lender’s sole cost and expense, to require Borrowers to restructure the Loan or any of the Components into additional multiple notes (which may include component notes and/or senior and junior notes) and/or to create participation interests in the Loan or any of the Components, which restructuring may include reallocation of principal amounts of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan and/or the restructuring of a portion of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan to one or more of the foregoing or to one or more additional mezzanine loans (each, a “New Mezzanine Loan”) to the direct and/or indirect owners of the equity interests in Borrowers as reasonably, mutually determined by Lender and Borrowers and that are direct or indirect subsidiaries of HR Holdings, secured by a pledge of such interests, the establishment of different interest rates for the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s) and the payment of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s) in such order of priority as may be designated by Lender; provided, that (i) the total amounts of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s) immediately following such restructuring shall equal the amount of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuring, (ii) the weighted average spread above LIBOR of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s), if any, immediately following such restructuring, shall, in the aggregate, equal the weighted average spread for all of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuring, and (iii) the debt service payments on the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s), if any, as calculated immediately following such restructuring, shall equal the aggregate debt service payments which would have been payable under the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, had the restructuring not occurred. Borrowers shall cooperate with all reasonable requests of Lender in order to restructure the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan and/or to create and/or restructure one or more New Mezzanine Loan(s), if applicable, and shall, upon fifteen (15) Business Days written notice from Lender, which notice shall include the forms of documents for which Lender is requesting execution and delivery, (A) execute and deliver such documents, including, without limitation, in the case of any New Mezzanine Loan, a mezzanine note, a mezzanine loan agreement, a pledge and security agreement and a mezzanine cash management agreement, (B) cause Borrowers’ counsel to deliver such legal opinions, and (C) create such a bankruptcy remote borrower under each New Mezzanine Loan as, in each of the case of clauses (A), (B) and (C) above, shall be reasonably required by Lender and required by any Rating Agency in connection therewith, all in form and substance reasonably satisfactory to Lender, including, without limitation, the severance of this Agreement, the Mortgage and the other Loan Documents if requested by Lender. Except as may be required in connection with a Securitization pursuant to Section 9.1 hereof, Borrowers shall not be obligated to pay any costs or expenses incurred in connection with any such restructuring as set forth in this Section 9.8. In the event any Borrower fails to execute and deliver such documents to Lender within five (5) Business Days following such written notice by Lender, and Lender sends a second notice to Borrowers with respect to the delivery of such documents containing a legend clearly marked in not less than fourteen (14) point bold face type, underlined, in all capital letters “POWER OF ATTORNEY IN FAVOR OF LENDER DEEMED EFFECTIVE FOR EXECUTION AND DELIVERY OF DOCUMENTS IF NO RESPONSE WITHIN 5 BUSINESS DAYS”, each Borrower hereby absolutely and irrevocably appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect such transactions, each Borrower ratifying all that such attorney shall do by virtue thereof, if any Borrower fails to execute and deliver such documents within five (5) Business Days of receipt of such second notice. It shall be an Event of Default if any Borrower fails to comply with any of the terms, covenants or conditions of this Section 9.8 after the expiration of five (5) Business Days after the second notice thereof.
Appears in 2 contracts
Samples: Loan Agreement (Hard Rock Hotel Holdings, LLC), Loan Agreement (Hard Rock Hotel Holdings, LLC)
Restructuring of Loan. (a) Lender, without in any way limiting Lender’s other rights hereunder, in its sole and absolute discretion, shall have the right at any time, at Lender’s sole cost and expense, time prior to a Securitization to require Borrowers to restructure the Loan or any of the Components into additional multiple notes (which may include component notes and/or senior and junior notes) and/or to create participation interests in the Loan or any of the ComponentsLoan, which restructuring may include reallocation of principal amounts of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan amongst each other and/or the restructuring of a portion of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan to one or more of the foregoing or to one or more additional mezzanine loans (each, a the “New Mezzanine Loan”) to the direct and/or or indirect owners of the equity interests in Borrowers as reasonably, mutually determined by Lender and Borrowers and that are direct or indirect subsidiaries of HR HoldingsBorrowers, secured by a pledge of such interests, the establishment of different interest rates and debt service payments for the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any the New Mezzanine Loan(s) Loan and the payment of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any the New Mezzanine Loan(s) Loan in such order of priority as may be designated by Lender; provided, provided that (i) the total principal amounts of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any the New Mezzanine Loan(s) immediately following such restructuring Loan shall equal the total principal amount of the Reduced Acquisition Loan, Loan and the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuring, (ii) except in the weighted average spread above LIBOR case of the Reduced Acquisition occurrence of an Event of Default, a Mezzanine Loan Event of Default and/or a default beyond all notice and cure periods under the New Mezzanine Loan, or of a Casualty or Condemnation that results in the payment of principal under the Loan, the Construction Loan, Mezzanine Loan and/or the First New Mezzanine Loan, the Second weighted average interest rate of the Loan, the Mezzanine Loan and the New Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s), if any, immediately following such restructuring, shall, in the aggregate, equal the weighted average spread for all aggregate interest rate of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mortgage Loan and Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, as determined by Lender immediately prior to the restructuringrestructuring (except as set forth in the last sentence of this clause (a)), and (iii) except in the case of the occurrence of an Event of Default, a Mezzanine Loan Event of Default and/or a default beyond all notice and cure periods under the New Mezzanine Loan, or of a Casualty or Condemnation that results in the payment of principal under the Loan, the Mezzanine Loan and/or the New Mezzanine Loan, the aggregate debt service payments on the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any the New Mezzanine Loan(s), if any, as calculated immediately following such restructuring, Loan shall equal the aggregate debt service payments which would have been payable under the Reduced Acquisition Loan, and the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, had the restructuring not occurred. Borrowers .
(b) Prior to the sale of the Loan Documents in connection with a Securitization, each Borrower shall cooperate with all reasonable requests of Lender in order to restructure the Loan and/or any of and the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan and/or to create and/or restructure one or more a New Mezzanine Loan(s)Loan, if applicable, and shall, upon fifteen ten (1510) Business Days written notice from Lender, which notice shall include the forms of documents for which Lender is requesting execution and delivery, (Ai) execute and deliver such documents, including, without limitation, in the case of any New Mezzanine Loan, a mezzanine note, a mezzanine loan agreement, a pledge and security agreement and a mezzanine cash management deposit account agreement, provided that such documents are on substantially the same terms and conditions as the Mezzanine Loan Documents, (Bii) cause Borrowers’ counsel to deliver such legal opinionsopinions as are comparable to the legal opinions delivered by Borrowers’ counsel with respect to the Mezzanine Loan, and (Ciii) create such a bankruptcy remote borrower under each the New Mezzanine Loan as, in each of the case cases of clauses (Ai), (Bii) and (Ciii) above, shall be reasonably required by Lender and required by any Rating Agency in connection therewith, all in form and substance reasonably satisfactory to Lender, including, without limitation, the severance of this Agreement, the Mortgage Mortgages and the other Loan Documents if requested by Lender. requested.
(c) Except as may be required in connection with a Securitization pursuant to Section 9.1 hereof, Borrowers no Borrower shall not be obligated to pay any costs or expenses incurred in connection with any such restructuring as set forth in this Section 9.8. In the event any Borrower fails , other than Borrowers’ legal fees up to execute and deliver such documents to Lender within five (5) Business Days following such written notice by Lender, and Lender sends a second notice to Borrowers with respect to the delivery of such documents containing a legend clearly marked in not less than fourteen (14) point bold face type, underlined, in all capital letters “POWER OF ATTORNEY IN FAVOR OF LENDER DEEMED EFFECTIVE FOR EXECUTION AND DELIVERY OF DOCUMENTS IF NO RESPONSE WITHIN 5 BUSINESS DAYS”, each Borrower hereby absolutely and irrevocably appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect such transactions, each Borrower ratifying all that such attorney shall do by virtue thereof, if any Borrower fails to execute and deliver such documents within five (5) Business Days of receipt of such second notice. It shall be an Event of Default if any Borrower fails to comply with any of the terms, covenants or conditions of this Section 9.8 after the expiration of five (5) Business Days after the second notice thereof$25,000.
Appears in 2 contracts
Samples: Loan Agreement (Cole Credit Property Trust Inc), Loan Agreement (Cole Credit Property Trust III, Inc.)
Restructuring of Loan. At any time prior to the Securitization of the entire Loan, Lender, without in any way limiting Lender’s other rights hereunder, in its sole and absolute discretion, shall have the right at any time, at Lender’s sole cost and expense, time to require Borrowers to restructure the Loan or any of the Components into additional multiple notes (which may include component notes and/or senior and junior notes) and/or to create participation interests in the Loan or any of the ComponentsLoan, which restructuring may include reallocation of principal amounts of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan and/or or the restructuring of a portion of the Loan and/or any of to either the Components, the First Mezzanine Loan, the Second Mezzanine Mortgage Loan and/or the Third Mezzanine Loan to one or more of the foregoing or to one or more additional mezzanine loans (each, a “New Mezzanine Loan”) to the owners of the direct and/or indirect owners of the equity interests in Borrowers as reasonably, mutually determined by Lender and Borrowers and that are direct or indirect subsidiaries of HR Holdingsany Borrower, secured by a pledge of such interests, and/or the reallocation of a portion of the Mortgage Loan to the Loan and/or any New Mezzanine Loan or the establishment of different interest rates, floor interest rates and debt service payments for the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Mortgage Loan and any New Mezzanine Loan(s) Loan and the payment of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Mortgage Loan and any New Mezzanine Loan(s) Loan in such order of priority as may be designated by Lender; provided, provided that (i) the total amounts of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Mortgage Loan and any all New Mezzanine Loan(s) immediately following such restructuring Loans shall equal the amount of the Reduced Acquisition Loan and the Mortgage Loan immediately prior to the restructuring and the economic terms of the Loan, the Construction Mortgage Loan and all New Mezzanine Loans shall be the same as the economic terms of the Loan and the Mortgage Loan prior to such Restructuring, (ii) except in the case of an Event of Default under, or prepayment of, the Loan, the First Mortgage Loan and/or any New Mezzanine Loan, the Second Mezzanine weighted interest rate of the Loan, the Third Mezzanine Mortgage Loan and any previously existing all New Mezzanine Loan(s)Loans, if any, immediately prior to shall, at the time of the restructuring, (ii) the weighted average spread above LIBOR of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s), if any, immediately following such restructuring, shall, in the aggregate, equal the weighted average spread for all interest rate of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuringMortgage Loan, and (iii) except in the case of an Event of Default under, or a prepayment of, the Loan, the Mortgage Loan and/or any New Mezzanine Loan, the debt service payments on the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Mortgage Loan and any all New Mezzanine Loan(s), if any, as calculated immediately following such restructuring, Loans shall equal the aggregate debt service payments which would have been payable under the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, the Mortgage Loan had the restructuring not occurred. Borrowers Borrower shall cooperate with all reasonable requests of Lender in order to restructure the Loan and/or and the Mortgage Loan and create any of the Components, the First New Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan and/or to create and/or restructure one or more New Mezzanine Loan(s), if applicable, and shall, upon fifteen ten (1510) Business Days written notice from Lender, which notice shall include the forms of documents for which Lender is requesting execution and delivery, (A) execute and deliver such documents, including, without limitation, including in the case of any New Mezzanine Loan, a mezzanine note, a mezzanine loan agreement, a pledge and security agreement agreement, and a mezzanine cash management deposit account agreement, (B) cause Borrowers’ counsel to deliver such legal opinions, and (C) create such a bankruptcy remote borrower Borrower under each New Mezzanine Loan as, in each of the case of clauses (A), (B) and (C) above, shall be reasonably required by Lender and or required by any Rating Agency in connection therewith, all in form and substance reasonably satisfactory to Lender, including, without limitation, including the severance of this Agreement, the Mortgage Pledge Agreements and the other Loan Documents if requested by Lenderrequested. Except as may be required in connection with a Securitization pursuant to Section 9.1 9A hereof, Borrowers shall not be obligated to pay any costs or expenses incurred in connection with any such restructuring as set forth in this Section 9.89.7. In the event any Borrower fails Borrowers’ failure to execute and deliver such documents to Lender comply with their obligations under this Section 9.7 within five ten (510) Business Days following such written after Borrowers’ receipt of notice by Lender, and Lender sends a second notice to Borrowers with respect to the delivery of such documents containing a legend clearly marked in not less than fourteen (14) point bold face type, underlined, in all capital letters “POWER OF ATTORNEY IN FAVOR OF LENDER DEEMED EFFECTIVE FOR EXECUTION AND DELIVERY OF DOCUMENTS IF NO RESPONSE WITHIN 5 BUSINESS DAYS”, each Borrower hereby absolutely and irrevocably appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect such transactions, each Borrower ratifying all that such attorney failure shall do by virtue thereof, if any Borrower fails to execute and deliver such documents within five (5) Business Days of receipt of such second notice. It shall be constitute an Event of Default if any Borrower fails to comply with any of the terms, covenants or conditions of under this Section 9.8 after the expiration of five (5) Business Days after the second notice thereofAgreement.
Appears in 2 contracts
Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (MPG Office Trust, Inc.)
Restructuring of Loan. (a) Lender, without in any way limiting Lender’s other rights hereunder, in its sole and absolute discretion, shall have the right at any time, at Lender’s sole cost and expense, time to require Borrowers Borrower to restructure the Loan or any of the Components into additional multiple notes (which may include component notes and/or senior and junior notes) ), to re-allocate principal among component notes and/or senior and junior notes and/or to create participation interests in the Loan or any of the ComponentsLoan, which restructuring may include reallocation of principal amounts of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan and/or the restructuring of a portion of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan to one or more of the foregoing or to one or more additional mezzanine loans (each, a the “New Mezzanine Loan”) to the direct and/or or indirect owners of the equity interests in Borrowers as reasonably, mutually determined by Lender and Borrowers and that are direct or indirect subsidiaries of HR HoldingsBorrower, secured by a pledge of such interests, the establishment of different interest rates and debt service payments for the Loan and/or any of the Components, the First Mezzanine Loan, and the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) and the payment of the Loan and/or any of the Components, the First Mezzanine Loan, and the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) in such order of priority as may be designated by Lender; provided, provided that (i) the total principal amounts of the Reduced Acquisition LoanLoan (including any component notes), and the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) immediately following such restructuring shall equal the total principal amount of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuring, (ii) except in the weighted average spread above LIBOR case of the Reduced Acquisition occurrence of an Event of Default or a default beyond all notice and cure periods under the New Mezzanine Loan, or of a Casualty or Condemnation that results in the Construction Loan, payment of principal under the First Loan and/or the New Mezzanine Loan, the Second weighted average interest rate of the Loan and the New Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s), if any, immediately following such restructuring, shall, in the aggregate, equal the weighted average spread for all of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuringInterest Rate, and (iii) except in the case of the occurrence of an Event of Default and/or a default beyond all notice and cure periods under the New Mezzanine Loan, or of a Casualty or Condemnation that results in the payment of principal under the Loan and/or the New Mezzanine Loan, the aggregate debt service payments on the Reduced Acquisition Loan, Loan and the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s), if any, as calculated immediately following such restructuring, shall equal the aggregate debt service payments which would have been payable under the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, had the restructuring not occurred. Borrowers .
(b) Borrower shall cooperate with all reasonable requests of Lender in order to restructure the Loan and/or any of the ComponentsNote, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan and/or to create and/or restructure one or more a New Mezzanine Loan(s)Loan, if applicable, and shall, upon fifteen ten (1510) Business Days written notice from Lender, which notice shall include the forms of documents for which Lender is requesting execution and delivery, (Ai) execute and deliver such documents, including, without limitation, in the case of any New Mezzanine Loan, a mezzanine note, a mezzanine loan agreement, a pledge and security agreement and a mezzanine cash management deposit account agreement, (Bii) cause Borrowers’ Borrower’s counsel to deliver such legal opinions, and (Ciii) create such a bankruptcy remote borrower under each the New Mezzanine Loan as, in each of the case cases of clauses (Ai), (Bii) and (Ciii) above, shall be reasonably required by Lender and required by any Rating Agency in connection therewith, all in form and substance reasonably satisfactory to Lender, including, without limitation, the severance of this Agreement, the Mortgage Security Instrument and the other Loan Documents if requested requested; provided, however, but subject to Section 9.4(a)(iii) hereof, any such amendments required by Lender. Lender shall not result in any economic or other material adverse change in the transaction contemplated by this Agreement or the other Loan Documents.
(c) Except as may be required in connection with a Securitization pursuant to Section 9.1 hereof, Borrowers Borrower shall not be obligated to pay any costs or expenses incurred in connection with any such restructuring as set forth in this Section 9.8. 9.4.
(d) In the event any Borrower fails to execute and deliver such documents described in this Section 9.4 to Lender within five ten (510) Business Days following such written notice by Lender, and Lender sends a second notice to Borrowers Borrower with respect to the delivery of such documents containing a legend clearly marked in not less than fourteen (14) point bold face type, underlined, in all capital letters “POWER OF ATTORNEY IN FAVOR OF LENDER DEEMED EFFECTIVE FOR EXECUTION AND DELIVERY OF DOCUMENTS IF NO RESPONSE WITHIN 5 10 BUSINESS DAYS”, each Borrower hereby absolutely and irrevocably appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect such transactions, each Borrower ratifying all that such attorney shall do by virtue thereof, if any Borrower fails to execute and deliver such documents within five ten (510) Business Days of receipt of such second notice. It shall be an Event of Default if any Borrower fails to comply with any of the terms, covenants or conditions of this Section 9.8 9.4 after the expiration of five ten (510) Business Days after the second notice thereof.
Appears in 2 contracts
Samples: Loan Agreement (Inland Diversified Real Estate Trust, Inc.), Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
Restructuring of Loan. At any time prior to the Securitization of the entire Loan, Lender, without in any way limiting Lender’s other rights hereunder, in its sole and absolute discretion, shall have the right at any time, at Lender’s sole cost and expense, time to require Borrowers to restructure the Loan or any of the Components into additional multiple notes (which may include component notes and/or senior and junior notes) and/or to create participation interests in the Loan or any of the ComponentsLoan, which restructuring may include reallocation of principal amounts of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan and/or or the restructuring of a portion of the Loan and/or any of to either the Components, the First Mezzanine Loan, the Second Mezzanine Mortgage Loan and/or the Third Mezzanine Loan to one or more of the foregoing or to one or more additional mezzanine loans (each, a “New Mezzanine Loan”) to the owners of the direct and/or indirect owners of the equity interests in Borrowers as reasonably, mutually determined by Lender and Borrowers and that are direct or indirect subsidiaries of HR Holdingsany Borrower, secured by a pledge of such interests, and/or the reallocation of a portion of the Mortgage Loan to the Loan and/or any New Mezzanine Loan or the establishment of different interest rates, floor interest rates and debt service payments for the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Mortgage Loan and any New Mezzanine Loan(s) Loan and the payment of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Mortgage Loan and any New Mezzanine Loan(s) Loan in such order of priority as may be designated by Lender; provided, provided that (i) the total amounts of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Mortgage Loan and any all New Mezzanine Loan(s) immediately following such restructuring Loans shall equal the amount of the Reduced Acquisition Loan and the Mortgage Loan immediately prior to the restructuring and the economic terms of the Loan, the Construction Mortgage Loan and all New Mezzanine Loans shall be the same as the economic terms of the Loan and the Mortgage Loan prior to such Restructuring, (ii) except in the case of an Event of Default under, or prepayment of, the Loan, the First Mortgage Loan and/or any New Mezzanine Loan, the Second Mezzanine weighted interest rate of the Loan, the Third Mezzanine Mortgage Loan and any previously existing all New Mezzanine Loan(s)Loans, if any, immediately prior to shall, at the time of the restructuring, (ii) the weighted average spread above LIBOR of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s), if any, immediately following such restructuring, shall, in the aggregate, equal the weighted average spread for all interest rate of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuringMortgage Loan, and (iii) except in the case of an Event of Default under, or a prepayment of, the Loan, the Mortgage Loan and/or any New Mezzanine Loan, the debt service payments on the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Mortgage Loan and any all New Mezzanine Loan(s), if any, as calculated immediately following such restructuring, Loans shall equal the aggregate debt service payments which would have been payable under the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, the Mortgage Loan had the restructuring not occurred. Borrowers Borrower shall cooperate with all reasonable requests of Lender in order to restructure the Loan and/or and the Mortgage Loan and create any of the Components, the First New Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan and/or to create and/or restructure one or more New Mezzanine Loan(s), if applicable, and shall, upon fifteen ten (1510) Business Days written notice from Lender, which notice shall include the forms of documents for which Lender is requesting execution and delivery, (A) execute and deliver such documents, including, without limitation, including in the case of any New Mezzanine Loan, a mezzanine note, a mezzanine loan agreement, a pledge and security agreement agreement, and a mezzanine cash management deposit account agreement, (B) cause Borrowers’ counsel to deliver such legal opinions, and (C) create such a bankruptcy remote borrower under each New Mezzanine Loan as, in each of the case of clauses (A), (B) and (C) above, shall be reasonably required by Lender and or required by any Rating Agency in connection therewith, all in form and substance reasonably satisfactory to Lender, including, without limitation, including the severance of this Agreement, the Mortgage Pledge Agreements and the other Loan Documents if requested by Lenderrequested. Except as may be required in connection with a Securitization pursuant to Section 9.1 hereof, Borrowers shall not be obligated to pay any costs or expenses incurred in connection with any such restructuring as set forth in this Section 9.89.7. In the event any Borrower fails Borrowers’ failure to execute and deliver such documents to Lender comply with their obligations under this Section 9.7 within five ten (510) Business Days following such written after Borrowers’ receipt of notice by Lender, and Lender sends a second notice to Borrowers with respect to the delivery of such documents containing a legend clearly marked in not less than fourteen (14) point bold face type, underlined, in all capital letters “POWER OF ATTORNEY IN FAVOR OF LENDER DEEMED EFFECTIVE FOR EXECUTION AND DELIVERY OF DOCUMENTS IF NO RESPONSE WITHIN 5 BUSINESS DAYS”, each Borrower hereby absolutely and irrevocably appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect such transactions, each Borrower ratifying all that such attorney failure shall do by virtue thereof, if any Borrower fails to execute and deliver such documents within five (5) Business Days of receipt of such second notice. It shall be constitute an Event of Default if any Borrower fails to comply with any of the terms, covenants or conditions of under this Section 9.8 after the expiration of five (5) Business Days after the second notice thereof.Agreement. 101
Appears in 2 contracts
Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (MPG Office Trust, Inc.)
Restructuring of Loan. Lender, without in any way limiting Lender’s other rights hereunder, in its sole and absolute discretion, shall have the right at any time, at Lender’s sole cost and expense, time to require Borrowers Borrower to restructure the Loan or any of the Components into additional multiple notes (which may include component notes and/or senior and junior notes) and/or to create participation interests in the Loan or any of the ComponentsLoan, and which restructuring may include reallocation of principal amounts of the Loan and/or any (including, by way of example, the increase or decrease in the principal amount of the Componentssenior note and mortgage securing same, and the First Mezzanine Loan, corresponding decrease or increase in the Second Mezzanine Loan and/or principal amounts of the Third Mezzanine Loan and/or junior note(s) and the security instrument(s) securing same) or the restructuring of a portion of the Loan and/or any of into a mezzanine loan (the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan to one or more of the foregoing or to one or more additional mezzanine loans (each, a “New Mezzanine Loan”) to the direct and/or indirect owners of the direct equity interests in Borrowers as reasonably, mutually determined by Lender and Borrowers and that are direct or indirect subsidiaries of HR HoldingsBorrower, secured by a pledge of such direct equity interests, the establishment of different interest rates and debt service payments for the Loan and/or any of and the Components, the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) and the payment of the Loan and/or any of and the Components, the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) in such order of priority as may be designated by Lender; provided, that (a) (i) the total amounts of the Reduced Acquisition Loan, Loan and the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) immediately following such restructuring shall equal the amount of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuring, (ii) except in the weighted average spread above LIBOR case of an Event of Default under the Reduced Acquisition Loan, Loan and/or the Construction Loan, the First New Mezzanine Loan, the Second weighted average interest rate of the Loan and the New Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s), if any, immediately following such restructuring, shall, in the aggregate, equal the weighted average spread for all of interest rate which was applicable to the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuring, restructuring and (iii) except in the case of an Event of Default under the Loan and/or the New Mezzanine Loan, the debt service payments on the Reduced Acquisition Loan, Loan and the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s), if any, as calculated immediately following such restructuring, shall equal the aggregate debt service payments payment which would have been payable was due under the Reduced Acquisition Loan, Loan immediately prior to the Construction Loan, restructuring; provided that any such restructuring carried out after the First Mezzanine Loan, closing of the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, had the restructuring not occurredshall be at no material cost to Borrower. Borrowers Borrower shall cooperate with all reasonable requests of Lender in order to restructure the Loan and/or any of and create the Components, the First Mezzanine Loan, the Second New Mezzanine Loan and/or the Third Mezzanine Loan and/or to create and/or restructure one or more New Mezzanine Loan(s), if applicable, and shall, upon fifteen (15) Business Days written notice from Lender, which notice shall include the forms of documents for which Lender is requesting execution and delivery, (A) execute and deliver such documents, documents including, without limitation, in the case of any the New Mezzanine Loan, a mezzanine note, a mezzanine loan agreement, a pledge and security agreement and a mezzanine cash management deposit account agreement, (B) cause Borrowers’ Borrower’s counsel to deliver such legal opinions, opinions and (C) create such a bankruptcy remote borrower under each the New Mezzanine Loan as, in each of the case of clauses each of (A), (B) and (C) above, shall be reasonably required by Lender and required by any Rating Agency in connection therewith, all in form and substance reasonably satisfactory to LenderLender and satisfactory to any such Rating Agency, including, without limitation, including the severance of this Agreement, the Mortgage and the other Loan Documents if requested by Lender. Except as may be required in connection with a Securitization pursuant to Section 9.1 hereof, Borrowers shall not be obligated to pay any costs or expenses incurred in connection with any such restructuring as set forth in this Section 9.8requested. In the event any Borrower fails to execute and deliver such documents to Lender within five ten (510) Business Days following such written notice request by Lender, and Lender sends a second notice to Borrowers with respect to the delivery of such documents containing a legend clearly marked in not less than fourteen (14) point bold face type, underlined, in all capital letters “POWER OF ATTORNEY IN FAVOR OF LENDER DEEMED EFFECTIVE FOR EXECUTION AND DELIVERY OF DOCUMENTS IF NO RESPONSE WITHIN 5 BUSINESS DAYS”, each Borrower hereby absolutely and irrevocably appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect such transactions, each Borrower ratifying all that such attorney shall do by virtue thereof, if any Borrower fails to execute and deliver such documents within five (5) Business Days of receipt of such second notice. It shall be an Event of Default if any Borrower fails to comply with any of the terms, covenants or conditions of this Section 9.8 9 after the expiration of five often (510) Business Days after the second notice thereof.
Appears in 1 contract
Restructuring of Loan. Lender, without in any way limiting Lender’s other rights hereunder, in its sole and absolute discretion, shall have the right at any time, at Lender’s sole cost and expense, to require Borrowers Borrower to restructure the Loan or any of the Components into additional multiple notes (which may include component notes and/or senior and junior notes) and/or to create participation interests in the Loan or any of the ComponentsLoan, which restructuring may include reallocation of principal amounts of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan and/or the restructuring of a portion of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan to one or more of the foregoing or to one or more additional mezzanine loans (each, a “New Mezzanine Loan”) to the direct and/or indirect owners of the equity interests in Borrowers Borrower as reasonably, mutually determined by Lender and Borrowers and that are direct or indirect subsidiaries of HR HoldingsBorrower, secured by a pledge of such interests, the establishment of different interest rates for the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s) and the payment of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s) in such order of priority as may be designated by Lender; provided, that (i) the total amounts of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s) immediately following such restructuring shall equal the amount of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuring, (ii) the weighted average spread above LIBOR of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s), if any, immediately following such restructuring, shall, in the aggregate, equal the weighted average spread for all of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuring, and (iii) the debt service payments on the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s), if any, as calculated immediately following such restructuring, shall equal the aggregate debt service payments which would have been payable under the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, had the restructuring not occurred. Borrowers Borrower shall cooperate with all reasonable requests of Lender in order to restructure the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan and/or to create and/or restructure one or more New Mezzanine Loan(s), if applicable, and shall, upon fifteen (15) Business Days written notice from Lender, which notice shall include the forms of documents for which Lender is requesting execution and delivery, (A) execute and deliver such documents, including, without limitation, in the case of any New Mezzanine Loan, a mezzanine note, a mezzanine loan agreement, a pledge and security agreement and a mezzanine cash management agreement, (B) cause Borrowers’ Borrower’s counsel to deliver such legal opinions, and (C) create such a bankruptcy remote borrower under each New Mezzanine Loan as, in each of the case of clauses (A), (B) and (C) above, shall be reasonably required by Lender and required by any Rating Agency in connection therewith, all in form and substance reasonably satisfactory to Lender, including, without limitation, the severance of this Agreement, the Mortgage and the other Loan Documents if requested by Lender. Except as may be required in connection with a Securitization pursuant to Section 9.1 hereof, Borrowers shall not be obligated to pay any costs or expenses incurred in connection with any such restructuring as set forth in this Section 9.8. In the event any Borrower fails to execute and deliver such documents to Lender within five (5) Business Days following such written notice by Lender, and Lender sends a second notice to Borrowers with respect to the delivery of such documents containing a legend clearly marked in not less than fourteen (14) point bold face type, underlined, in all capital letters “POWER OF ATTORNEY IN FAVOR OF LENDER DEEMED EFFECTIVE FOR EXECUTION AND DELIVERY OF DOCUMENTS IF NO RESPONSE WITHIN 5 BUSINESS DAYS”, each Borrower hereby absolutely and irrevocably appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect such transactions, each Borrower ratifying all that such attorney shall do by virtue thereof, if any Borrower fails to execute and deliver such documents within five (5) Business Days of receipt of such second notice. It shall be an Event of Default if any Borrower fails to comply with any of the terms, covenants or conditions of this Section 9.8 after the expiration of five (5) Business Days after the second notice thereof.and
Appears in 1 contract
Restructuring of Loan. Lender(a) Agent, without in any way limiting LenderAgent’s other rights hereunder, in its sole and absolute discretion, shall have the right at any timetime to require Borrower, at Lender’s sole no cost and expenseto Borrower, to require Borrowers to restructure the Loan or any of the Components into additional multiple notes (which may include component notes and/or senior and junior notes) ), to re‑allocate principal among component notes and/or senior and junior notes and/or to create participation interests in the Loan or any of the Components, which restructuring may include reallocation of principal amounts of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan and/or the restructuring of a portion of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan to one or more of the foregoing or to one or more additional mezzanine loans (each, a “New Mezzanine Loan”) to the direct and/or indirect owners of the equity interests in Borrowers as reasonably, mutually determined by Lender and Borrowers and that are direct or indirect subsidiaries of HR Holdings, secured by a pledge of such interests, the establishment of different interest rates for the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s) and the payment of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s) in such order of priority as may be designated by Lender; provided, provided that (i) the total principal amounts of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and (including any New Mezzanine Loan(scomponent notes) immediately following such restructuring shall equal the total principal amount of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuring, (ii) except in the case of the occurrence of an Event of Default or of a Casualty or Condemnation that results in the payment of principal under the Loan, the weighted average spread above LIBOR interest rate of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s), if any, immediately following such restructuring, shall, in the aggregate, equal the weighted average spread for all Interest Rate, (iii) except in the case of the Reduced Acquisition occurrence of an Event of Default or of a Casualty or Condemnation that results in the payment of principal under the Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuring, and (iii) the aggregate debt service payments on the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s), if any, as calculated immediately following such restructuring, shall equal the aggregate debt service payments which would have been payable under the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, had the restructuring not occurred. Borrowers , (iv) none of the stated maturity, the regular payment date nor the interest accrual period of the Loan shall cooperate be changed, (v) the time periods during which Borrower is permitted to perform its obligations under the Loan Documents shall not be decreased, (vi) no other economic terms of the Loan (on a blended, aggregate basis) shall be modified except in the case of a “rate creep” during the continuance of an Event of Default or of a Casualty or Condemnation that results in the payment of principal under the Loan, and (vii) no other terms of the Loan shall be modified in a manner that would increase the obligations or decrease the rights of Borrower or Guarantor thereunder.
(b) Borrower shall cooperate, at no cost to Borrower, with all reasonable requests of Lender Agent in order to restructure (in accordance herewith) the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan Note and/or the Third Mezzanine Loan and/or to create and/or restructure one or more New Mezzanine Loan(s)Loan, if applicable, and shall, at no cost to Borrower, upon fifteen twenty (1520) Business Days Days’ written notice from LenderAgent (other than a severed Note in connection with a syndication of the Loan, which will only require five (5) Business Days’ written notice), which notice shall include the forms of documents for which Lender Agent is requesting execution and delivery, (Ai) execute and deliver such documents, including, without limitation, in the case of any New Mezzanine Loan, a mezzanine note, a mezzanine loan agreement, a pledge appropriate documents and security agreement and a mezzanine cash management agreement, (Bii) cause Borrowers’ Borrower’s counsel to deliver such customary legal opinions, and (C) create such a bankruptcy remote borrower under each New Mezzanine Loan opinions as, in each of the case cases of clauses (A), (Bi) and (Cii) above, shall be reasonably required by Lender Agent and required by any Rating Agency in connection therewith, all in form and substance reasonably satisfactory to LenderBorrower and Agent, including, without limitation, the severance of this Agreement, the Building Loan Mortgage and the other Loan Documents if requested requested; provided, however, that any such amendments required by Lender. Except as may be required Agent shall comply with the limitations on restructuring set forth in connection with a Securitization pursuant to Section 9.1 hereof, Borrowers 9.4(a).
(c) Agent shall not be obligated to pay any all of Borrower’s actual out‑of‑pocket costs or and expenses incurred in connection with any such restructuring as set forth in Agent’s and Borrower’s compliance with this Section 9.8. 9.4 and Borrower shall not be responsible for Agent’s or any other Person’s costs incurred under this Section 9.4.
(d) In the event any Borrower fails to execute and deliver such documents described in this Section 9.4 to Lender Agent within five ten (510) Business Days Days’ following such written notice by LenderAgent, and Lender Agent sends a second notice to Borrowers Borrower with respect to the delivery of such documents containing a legend clearly marked in not less than fourteen (14) point bold face type, underlined, in all capital letters “POWER OF ATTORNEY IN FAVOR OF LENDER AGENT DEEMED EFFECTIVE USActive 36631986.12 -145- FOR EXECUTION AND DELIVERY OF DOCUMENTS IF NO RESPONSE WITHIN 5 10 BUSINESS DAYS”, each Borrower hereby absolutely and irrevocably appoints Lender Agent as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect such transactions, each Borrower ratifying all that such attorney shall do by virtue thereof, if any Borrower fails to execute and deliver such documents within five ten (510) Business Days of receipt delivery of such second notice. It shall be an Event of Default if any Borrower fails to comply with any of the terms, covenants or conditions of this Section 9.8 9.4 after the expiration of five ten (510) Business Days after delivery of the second notice thereof.
Appears in 1 contract
Samples: Building Loan Agreement (KBS Strategic Opportunity REIT, Inc.)
Restructuring of Loan. (a) Lender, without in any way limiting Lender’s other rights hereunder, in its sole and absolute discretion, shall have the right at any time, at Lender’s sole cost and expense, time to require Borrowers Borrower to restructure the Loan or any of the Components into additional multiple notes (which may include component notes and/or senior and junior notes) ), to re-allocate principal among component notes and/or senior and junior notes and/or to create participation interests in the Loan or any of the ComponentsLoan, which restructuring may include reallocation of principal amounts of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan and/or the restructuring of a portion of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan to one or more of the foregoing or to one or more additional mezzanine loans (each, a the “New Mezzanine Loan”) to the direct and/or or indirect owners of the equity interests in Borrowers as reasonably, mutually determined by Lender and Borrowers and that are direct or indirect subsidiaries of HR HoldingsBorrower, secured by a pledge of such interests, the establishment of different interest rates and debt service payments for the Loan and/or any of the Components, the First Mezzanine Loan, and the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) and the payment of the Loan and/or any of the Components, the First Mezzanine Loan, and the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) in such order of priority as may be designated by Lender; provided, provided that (i) the total principal amounts of the Reduced Acquisition LoanLoan (including any component notes), and the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) immediately following such restructuring shall equal the total principal amount of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuring, (ii) except in the weighted average spread above LIBOR case of the Reduced Acquisition occurrence of an Event of Default or a default beyond all notice and cure periods under the New Mezzanine Loan, or of a Casualty or Condemnation that results in the Construction Loan, payment of principal under the First Loan and/or the New Mezzanine Loan, the Second weighted average interest rate and all other fees and economic terms of the Loan and the New Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s), if any, immediately following such restructuring, shall, in the aggregate, equal the weighted average spread for all of Interest Rate and other fees and economic terms as in effect on the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuringClosing Date, and (iii) except in the case of the occurrence of an Event of Default and/or a default beyond all notice and cure periods under the New Mezzanine Loan, or of a Casualty or Condemnation that results in the payment of principal under the Loan and/or the New Mezzanine Loan, the aggregate debt service payments on the Reduced Acquisition Loan, Loan and the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s), if any, as calculated immediately following such restructuring, all other fees and economic terms shall equal the aggregate debt service payments and other fees and economic terms which would have been payable under the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, had the restructuring not occurred. Borrowers Without in any way limiting Lender’s other rights hereunder, Lender shall have the right, in its sole and absolute discretion, at any time, to convert a portion of the Loan into a preferred equity investment (the “Preferred Equity Investment”). The Preferred Equity Investment shall be structured so that an Affiliate of Lender and Affiliate of Borrower are the preferred equity member and common member, respectively, of an entity that is sole member of Borrower, but otherwise will be structured on the same terms and conditions as though it were a New Mezzanine Loan (but without an equity pledge). The Preferred Equity Investment shall be treated as debt for federal income tax purposes.
(b) Borrower shall cooperate with all reasonable requests of Lender in order to restructure the Loan and/or any of the ComponentsNote, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan and/or to create and/or restructure one or more a New Mezzanine Loan(s)Loan, if applicable, and shall, upon fifteen thirty (1530) Business Days Days’ written notice from Lender, which notice shall include the forms of documents for which Lender is requesting execution and delivery, (Ai) execute and deliver such documents, including, without limitation, in the case of any New Mezzanine Loan, a mezzanine note, a mezzanine loan agreement, a pledge and security agreement and a mezzanine cash management deposit account agreement, (Bii) cause Borrowers’ Borrower’s counsel to deliver such legal opinions, and (Ciii) create such a bankruptcy remote borrower under each the New Mezzanine Loan as, in each of the case cases of clauses (Ai), (Bii) and (Ciii) above, shall be reasonably required by Lender and required by any Rating Agency in connection therewith, all in form and substance reasonably satisfactory to Lender, including, without limitation, the severance of this Agreement, the Mortgage Security Instrument and the other Loan Documents if requested requested; provided, however, that following any such amendments required by Lender. Except Lender (A) the total principal amounts of the Loan (including any component notes), and the New Mezzanine Loan shall equal the total principal amount of the Loan immediately prior to the restructuring, (B) except in the case of the occurrence of an Event of Default or a default beyond all notice and cure periods under the New Mezzanine Loan, or of a Casualty or Condemnation that results in the payment of principal under the Loan and/or the New Mezzanine Loan, the weighted average interest rate and all other fees and economic terms of the Loan and the New Mezzanine Loan, if any, shall, in the aggregate, equal the Interest Rate and other fees and economic terms as may be required in connection with effect on the Closing Date, and (C) except in the case of the occurrence of an Event of Default and/or a Securitization pursuant to Section 9.1 hereofdefault beyond all notice and cure periods under the New Mezzanine Loan, Borrowers or of a Casualty or Condemnation that results in the payment of principal under the Loan and/or the New Mezzanine Loan, the aggregate debt service payments on the Loan and the New Mezzanine Loan and all other fees and economic terms shall equal the aggregate debt service payments and other fees and economic terms which would have been payable under the Loan had the restructuring not be obligated to occurred.
(c) Lender shall pay any all of its and Borrower’s actual out-of-pocket costs or and reasonable expenses incurred in connection with any such restructuring as set forth in the transactions contemplated by this Section 9.8. 9.4.
(d) In the event any Borrower fails to execute and deliver such documents described in this Section 9.4 to Lender within five thirty (530) Business Days days following such written notice by Lender, and Lender sends a second notice to Borrowers Borrower with respect to the delivery of such documents containing a legend clearly marked in not less than fourteen (14) point bold face type, underlined, in all capital letters “POWER OF ATTORNEY IN FAVOR OF LENDER DEEMED EFFECTIVE FOR EXECUTION AND DELIVERY OF DOCUMENTS IF NO RESPONSE WITHIN 5 BUSINESS 30 DAYS”, each Borrower hereby absolutely and irrevocably appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect such transactions, each Borrower ratifying all that such attorney shall do by virtue thereof, if any Borrower fails to execute and deliver such documents within five ten (510) Business Days of receipt delivery of such second notice. It shall be an Event of Default if any Borrower fails to comply with any of the terms, covenants or conditions of this Section 9.8 9.4 after the expiration of five ten (510) Business Days after delivery of the second notice thereof.
Appears in 1 contract
Samples: Loan Agreement (Lightstone Value Plus Real Estate Investment Trust V, Inc.)
Restructuring of Loan. (a) Lender, without in any way limiting Lender’s other rights hereunder, in its sole and absolute discretion, shall have the right at any time, at Lender’s sole cost and expense, time to require Borrowers Borrower to restructure the Loan or any of the Components into additional multiple notes (which may include component notes and/or senior and junior notes) ), to re-allocate principal among component notes and/or senior and junior notes and/or to create participation interests in the Loan or any of the ComponentsLoan, which restructuring may include reallocation of principal amounts of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan and/or the restructuring of a portion of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan to one or more of the foregoing or to one or more additional mezzanine loans (each, a the “New Mezzanine Loan”) to the direct and/or or indirect owners of the equity interests in Borrowers as reasonably, mutually determined by Lender and Borrowers and that are direct or indirect subsidiaries of HR HoldingsBorrower, secured by a pledge of such interests, the establishment of different interest rates and debt service payments for the Loan and/or any of the Components, the First Mezzanine Loan, and the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) and the payment of the Loan and/or any of the Components, the First Mezzanine Loan, and the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) in such order of priority as may be designated by Lender; provided, provided that (i) the total principal amounts of the Reduced Acquisition LoanLoan (including any component notes), and the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) immediately following such restructuring shall equal the total principal amount of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuring, (ii) except in the weighted average spread above LIBOR case of the Reduced Acquisition occurrence of an Event of Default or a default beyond all notice and cure periods under the New Mezzanine Loan, or of a Casualty or Condemnation that results in the Construction Loan, payment of principal under the First Loan and/or the New Mezzanine Loan, the Second initial weighted average interest rate of the Loan and the New Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s), if any, immediately following such restructuring, shall, in the aggregate, equal the weighted average spread for all of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuringInterest Rate, and (iii) except in the case of the occurrence of an Event of Default and/or a default beyond all notice and cure periods under the New Mezzanine Loan, or of a Casualty or Condemnation that results in the payment of principal under the Loan and/or the New Mezzanine Loan, the aggregate debt service payments on the Reduced Acquisition Loan, Loan and the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s), if any, as calculated immediately following such restructuring, shall equal the aggregate debt service payments which would have been payable under the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, had the restructuring not occurred. Borrowers .
(b) Borrower shall cooperate with all reasonable requests of Lender in order to restructure the Loan and/or any of the ComponentsNote, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan and/or to create and/or restructure one or more a New Mezzanine Loan(s)Loan, if applicable, and shall, upon fifteen ten (1510) Business Days written notice from Lender, which notice shall include the forms of documents for which Lender is requesting execution and delivery, (Ai) execute and deliver such documents, including, without limitation, in the case of any New Mezzanine Loan, a mezzanine note, a mezzanine loan agreement, a pledge and security agreement and a mezzanine cash management deposit account agreement, (Bii) cause Borrowers’ Borrower’s counsel to deliver such legal opinions, and (Ciii) create such a bankruptcy remote borrower under each the New Mezzanine Loan as, in each of the case cases of clauses (Ai), (Bii) and (Ciii) above, shall be reasonably required by Lender and required by any Rating Agency in connection therewith, all in form and substance reasonably satisfactory to Lender, including, without limitation, the severance of this Agreement, the Mortgage Security Instruments and the other Loan Documents if requested by Lender. Except as may be required in connection with a Securitization pursuant requested; provided, however, but subject to the last proviso of Section 9.1 9.4(a) hereof, Borrowers any such amendments required by Lender shall not result in any economic or other material adverse change in the transaction contemplated by this Agreement or the other Loan Documents.
(c) Borrower shall not be obligated to pay any costs or expenses incurred in connection with any such restructuring as set forth in this Section 9.8. 9.4 except for Borrower’s own legal costs and expenses and Borrower’s own accounting costs and expenses.
(d) In the event any Borrower fails to execute and deliver such documents described in this Section 9.4 to Lender within five ten (510) Business Days following such written notice by Lender, and Lender sends a second notice to Borrowers Borrower with respect to the delivery of such documents containing a legend clearly marked in not less than fourteen (14) point bold face type, underlined, in all capital letters “POWER OF ATTORNEY IN FAVOR OF LENDER DEEMED EFFECTIVE FOR EXECUTION AND DELIVERY OF DOCUMENTS IF NO RESPONSE WITHIN 5 BUSINESS DAYS”, each Borrower hereby absolutely and irrevocably appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect such transactions, each Borrower ratifying all that such attorney shall do by virtue thereof, if any Borrower fails to execute and deliver such documents within five (5) Business Days of receipt of such second notice. It shall be an Event of Default if any Borrower fails to comply with any of the terms, covenants or conditions of this Section 9.8 after the expiration of five (5) Business Days after the second notice thereof.DEEMED
Appears in 1 contract
Restructuring of Loan. Lender, without in any way limiting Lender’s other rights hereunder, in its sole and absolute discretion, shall have the right at any time, at Lender’s sole cost and expense, to require Borrowers to restructure the Loan or any of the Components into additional multiple notes (which may include component notes and/or senior and junior notes) and/or to create participation interests in the Loan or any of the ComponentsLoan, which restructuring may include reallocation of principal amounts of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan and/or the restructuring of a portion of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan to one or more of the foregoing or to one or more additional mezzanine loans (each, a “New Mezzanine Loan”) to the direct and/or indirect owners of the equity interests in Borrowers as reasonably, mutually determined by Lender and Borrowers and that are direct or indirect subsidiaries of HR Holdings, secured by a pledge of such interests, the establishment of different interest rates for the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s) and the payment of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s) in such order of priority as may be designated by Lender; provided, that (i) the total amounts of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s) immediately following such restructuring shall equal the amount of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuring, (ii) the weighted average spread above LIBOR of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s), if any, immediately following such restructuring, shall, in the aggregate, equal the weighted average spread for all of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuring, and (iii) the debt service payments on the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s), if any, as calculated immediately following such restructuring, shall equal the aggregate debt service payments which would have been payable under the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, had the restructuring not occurred. Borrowers shall cooperate with all reasonable requests of Lender in order to restructure the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan and/or to create and/or restructure one or more New Mezzanine Loan(s), if applicable, and shall, upon fifteen (15) Business Days written notice from Lender, which notice shall include the forms of documents for which Lender is requesting execution and delivery, (A) execute and deliver such documents, including, without limitation, in the case of any New Mezzanine Loan, a mezzanine note, a mezzanine loan agreement, a pledge and security agreement and a mezzanine cash management agreement, (B) cause Borrowers’ counsel to deliver such legal opinions, and (C) create such a bankruptcy remote borrower under each New Mezzanine Loan as, in each of the case of clauses (A), (B) and (C) above, shall be reasonably required by Lender and required by any Rating Agency in connection therewith, all in form and substance reasonably satisfactory to Lender, including, without limitation, the severance of this Agreement, the Mortgage and the other Loan Documents if requested by Lender. Except as may be required in connection with a Securitization pursuant to Section 9.1 hereof, Borrowers shall not be obligated to pay any costs or expenses incurred in connection with any such restructuring as set forth in this Section 9.8. In the event any Borrower fails to execute and deliver such documents to Lender within five (5) Business Days following such written notice by Lender, and Lender sends a second notice to Borrowers with respect to the delivery of such documents containing a legend clearly marked in not less than fourteen (14) point bold face type, underlined, in all capital letters “POWER OF ATTORNEY IN FAVOR OF LENDER DEEMED EFFECTIVE FOR EXECUTION AND DELIVERY OF DOCUMENTS IF NO RESPONSE WITHIN 5 BUSINESS DAYS”, each Borrower hereby absolutely and irrevocably appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect such transactions, each Borrower ratifying all that such attorney shall do by virtue thereof, if any Borrower fails to execute and deliver such documents within five (5) Business Days of receipt of such second notice. It shall be an Event of Default if any Borrower fails to comply with any of the terms, covenants or conditions of this Section 9.8 after the expiration of five (5) Business Days after the second notice thereof.
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Restructuring of Loan. Lender, without in any way limiting Lender’s other rights hereunder, in its sole and absolute discretion, shall have the right at any time, at Lender’s sole cost and expense, time to require Borrowers Borrower to restructure the Loan or any of the Components into additional multiple notes (which may include component notes and/or or senior and junior notes) and/or or to create participation interests in the Loan or any of the ComponentsLoan, and which restructuring may include reallocation of principal amounts of the Loan and/or any (including, by way of example, the increase or decrease in the principal amount of the Componentssenior note and instrument securing same, and the First Mezzanine Loan, corresponding decrease or increase in the Second Mezzanine Loan and/or principal amounts of the Third Mezzanine Loan and/or junior note(s) and the security instrument(s) securing same) or the 88 Xxxxxxxx - Stamford restructuring of a portion of the Loan and/or any of into a mezzanine loan (the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan to one or more of the foregoing or to one or more additional mezzanine loans (each, a “New Mezzanine Loan”) to the direct and/or indirect owners of the direct equity interests in Borrowers as reasonably, mutually determined by Lender and Borrowers and that are direct or indirect subsidiaries of HR HoldingsBorrower, secured by a pledge of such direct equity interests, the establishment of different interest rates and debt service payments for the Loan and/or any of and the Components, the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) and the payment of the Loan and/or any of and the Components, the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) in such order of priority as may be designated by Lender; provided, that (i) the total amounts of the Reduced Acquisition Loan, Loan and the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) immediately following such restructuring shall equal the amount of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuring, (ii) except in the weighted average spread above LIBOR case of an Event of Default under the Reduced Acquisition Loan, Loan or the Construction Loan, the First New Mezzanine Loan, the Second weighted average interest rate of the Loan and the New Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s), if any, immediately following such restructuring, shall, in the aggregate, equal the weighted average spread for all of interest rate which was applicable to the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuring, restructuring and (iii) except in the case of an Event of Default under the Loan or the New Mezzanine Loan, the debt service payments on the Reduced Acquisition Loan, Loan and the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s), if any, as calculated immediately following such restructuring, shall equal the aggregate debt service payments payment which would have been payable was due under the Reduced Acquisition Loan, Loan immediately prior to the Construction Loan, restructuring; provided that any such restructuring carried out after the First Mezzanine Loan, closing of the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, had the restructuring not occurredshall be at no material cost to Borrower. Borrowers Borrower shall cooperate with all reasonable requests of Lender in order to restructure the Loan and/or any of and create the Components, the First Mezzanine Loan, the Second New Mezzanine Loan and/or the Third Mezzanine Loan and/or to create and/or restructure one or more New Mezzanine Loan(s), if applicable, and shall, upon fifteen (15) Business Days written notice from Lender, which notice shall include the forms of documents for which Lender is requesting execution and delivery, (A) execute and deliver such documents, documents including, without limitation, in the case of any the New Mezzanine Loan, a mezzanine note, a mezzanine loan agreement, a pledge and security agreement and a mezzanine cash management deposit account agreement, (B) cause Borrowers’ Borrower’s counsel to deliver such legal opinions, opinions and (C) create such a newly formed bankruptcy remote borrower under each the New Mezzanine Loan as, in each of the case of clauses each of (A), (B) and (C) above, shall be reasonably required by Lender and required by any Rating Agency in connection therewith, all in form and substance reasonably satisfactory to LenderLender and satisfactory to any such Rating Agency, including, without limitation, including the severance of this Agreement, the Mortgage Security Instrument and the other Loan Documents if requested by Lender. Except as may be required in connection with a Securitization pursuant to Section 9.1 hereof, Borrowers shall not be obligated to pay any costs or expenses incurred in connection with any such restructuring as set forth in this Section 9.8requested. In the event any Borrower fails to execute and deliver such documents to Lender within five ten (510) Business Days following such written notice request by Lender, and Lender sends a second notice to Borrowers with respect to the delivery of such documents containing a legend clearly marked in not less than fourteen (14) point bold face type, underlined, in all capital letters “POWER OF ATTORNEY IN FAVOR OF LENDER DEEMED EFFECTIVE FOR EXECUTION AND DELIVERY OF DOCUMENTS IF NO RESPONSE WITHIN 5 BUSINESS DAYS”, each Borrower hereby absolutely and irrevocably appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect such transactions, each Borrower ratifying all that such attorney shall do by virtue thereof, if any Borrower fails to execute and deliver such documents within five (5) Business Days of receipt of such second notice. It shall be an Event of Default if any Borrower fails to comply with any of the terms, covenants or conditions of this Section 9.8 9 after the expiration of five ten (510) Business Days after the second notice thereof. Borrower covenants and agrees that any such reallocation (as described above) will be in compliance with the representations and warranties set forth in Section 4.1 and Section 5.12 hereof.
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Restructuring of Loan. (a) Lender, without in any way limiting Lender’s other rights hereunder, in its sole and absolute discretion, shall have the right at any time, at Lender’s sole cost and expense, time to require Borrowers Borrower to restructure the Loan or any of the Components into additional multiple notes (which may include component notes and/or senior and junior notes) ), to re-allocate principal among component notes and/or senior and junior notes and/or to create participation interests in the Loan or any of the ComponentsLoan, which restructuring may include reallocation of principal amounts of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan and/or the restructuring of a portion of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan to one or more of the foregoing or to one or more additional mezzanine loans (each, each a “New Mezzanine Loan”) to the newly-formed direct and/or or indirect owners of the equity interests in Borrowers as reasonably, mutually determined by Lender and Borrowers and that are direct or indirect subsidiaries of HR HoldingsBorrower, secured by a pledge of such interests, the establishment of different interest rates and debt service payments for the Loan and/or any of and the Components, the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) and the payment of the Loan and/or any of and the Components, the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) in such order of priority as may be designated by Lender; provided, provided that (i) the total principal amounts of the Reduced Acquisition LoanLoan (including any component notes), the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third any existing New Mezzanine Loan and any the applicable New Mezzanine Loan(s) immediately following such restructuring Loan shall equal the total principal amount of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, Loan immediately prior to the restructuring, (ii) except in the weighted average spread above LIBOR case of the Reduced Acquisition occurrence of an Event of Default or a default beyond all notice and cure periods under the applicable New Mezzanine Loan, or of a Casualty or Condemnation that results in the Construction payment of principal under the Loan, any existing New Mezzanine Loan and/or the First applicable New Mezzanine Loan, the Second weighted average interest rate of the Loan, any existing New Mezzanine Loan and the applicable New Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s), if any, immediately following such restructuring, shall, in the aggregate, equal the weighted average spread for all of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuringInterest Rate, and (iii) except in the case of the occurrence of an Event of Default and/or a default beyond all notice and cure periods under the applicable New Mezzanine Loan, or of a Casualty or Condemnation that results in the payment of principal under the Loan, any existing New Mezzanine Loan and/or the applicable New Mezzanine Loan, the aggregate debt service payments on the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third any existing New Mezzanine Loan and any the applicable New Mezzanine Loan(s), if any, as calculated immediately following such restructuring, Loan shall equal the aggregate debt service payments which would have been payable under the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, Loan had the restructuring not occurred. Borrowers .
(b) Borrower shall cooperate with all reasonable requests of Lender in order to restructure the Loan and/or any of the ComponentsNote, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan and/or to create and/or restructure one or more a New Mezzanine Loan(s)Loan, if applicable, and shall, upon fifteen ten (15) Business Days written notice from Lender, which notice shall include the forms of documents for which Lender is requesting execution and delivery, and further provided that such forms are substantially the same as the Loan Documents with any changes required to reflect the structure of the transaction and a pledge agreement and any related documents in Lender’s standard form, (Ai) execute and deliver such documents, including, without limitation, in the case of any New Mezzanine Loan, a mezzanine note, a mezzanine loan agreement, a pledge and security agreement and a mezzanine cash management deposit account agreement, (Bii) cause Borrowers’ Borrower’s counsel to deliver such legal opinions, and (Ciii) create such a bankruptcy remote borrower under each the New Mezzanine Loan as, in each of the case cases of clauses (Ai), (Bii) and (Ciii) above, shall be reasonably required by Lender and required by any Rating Agency in connection therewith, all in form and substance reasonably satisfactory to Lender, including, without limitation, the severance of this Agreement, the Mortgage Security Instrument and the other Loan Documents if requested requested; provided, however, but subject to Section 9.4(a)(ii) and (iii) hereof, any such amendments required by LenderLender shall not result in any economic changes or other adverse change in the transaction contemplated by this Agreement or the other Loan Documents and no changes to the Loan Documents shall be required which modify or increase the liability, or impair or diminish the rights, of Borrower or Guarantor except to a de minimis extent. Except as may It is expressly understood and agreed by Borrower and Lender that the mere change in structure contemplated by this Section 9.4(b) shall not, in and of itself, be deemed to result in any economic changes or other adverse change in the transaction contemplated by this Agreement or the other Loan Documents or to modify or increase the liability, or impair or diminish the rights, of Borrower or Guarantor except to a de minimis extent and subject to Section 9.4(a)(ii) and (iii) hereof.
(c) Notwithstanding anything to the contrary contained herein, the reasonable, actual out-of-pocket costs incurred by Borrower and Guarantor for cooperation in connection with, and preparation of any financial or other data or statements required in connection with with, either this Section 9.4 or a Securitization pursuant to Section 9.1 hereofhereof (including, Borrowers without limitation, the payment of any applicable mortgage recording taxes or title insurance premiums), shall not be obligated to pay any costs or expenses incurred in connection with any such restructuring as set forth in this Section 9.8. paid by Lender.
(d) In the event any Borrower fails to execute and deliver such documents described in this Section 9.4 to Lender within five ten (510) Business Days following such written notice by Lender, and Lender sends a second notice to Borrowers Borrower with respect to the delivery of such documents containing a legend clearly marked in not less than fourteen (14) point bold face type, underlined, in all capital letters “POWER OF ATTORNEY IN FAVOR OF LENDER DEEMED EFFECTIVE FOR EXECUTION AND DELIVERY OF DOCUMENTS IF NO RESPONSE WITHIN 5 10 BUSINESS DAYS”, each Borrower hereby absolutely and irrevocably appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect such transactions, each Borrower ratifying all that such attorney shall do by virtue thereof, if any Borrower fails to execute and deliver such documents within five ten (510) Business Days of receipt of such second notice. It Additionally, it shall be an Event of Default if any Borrower fails to comply with any of the terms, covenants or conditions of this Section 9.8 9.4 after the expiration of five ten (510) Business Days after the second notice thereof.
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Restructuring of Loan. LenderAdministrative Agent, without in any way limiting LenderAdministrative Agent’s other rights hereunder, in its sole and absolute discretion, shall have the right at any time, at Lender’s sole cost time (and expense, any number of times during the term of the Loan) to require Borrowers to restructure the Loan or any of the Components into additional multiple notes (which may include component notes and/or senior and junior notes) and/or to create participation interests in the Loan or any of the ComponentsLoan, and which restructuring may include reallocation of principal amounts of the Loan and/or any (including, by way of example, the increase or decrease in the principal amount of the Componentssenior note and mortgage securing same, and the First Mezzanine Loancorresponding decrease or increase in the principal amounts of the junior note(s) and the security instrument securing same), reallocating the Second Mezzanine Loan and/or the Third Mezzanine Loan and/or sizing and interest rates of one or more Notes previously issued, or the restructuring of a portion of the Loan and/or any of into a mezzanine loan (the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan to one or more of the foregoing or to one or more additional mezzanine loans (each, a “New Mezzanine Loan”) to the direct and/or indirect owners of the direct equity interests in Borrowers as reasonably, mutually determined by Lender and Borrowers and that are direct or indirect subsidiaries of HR HoldingsBorrowers, secured by a pledge of such direct equity interests, the establishment of different interest rates and debt service payments for the Loan and/or any of and the Components, the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) and the payment of the Loan and/or any of and the Components, the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) in such order of priority as may be designated by LenderAdministrative Agent; provided, that (a) (i) the total amounts of the Reduced Acquisition Loan, Loan and the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) immediately following such restructuring shall equal the amount of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuring, (ii) except in the weighted average spread above LIBOR case of an Event of Default under the Reduced Acquisition Loan, Loan and/or the Construction Loan, the First New Mezzanine Loan, the Second weighted average interest rate of the Loan and the New Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s), if any, immediately following such restructuring, shall, in the aggregate, equal the weighted average spread for all of interest rate which was applicable to the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuring, restructuring and (iii) except in the case of an Event of Default under the Loan and/or the New Mezzanine Loan, the debt service payments on the Reduced Acquisition Loan and the New Mezzanine Loan shall equal the debt service payment which was due under the Loan immediately prior to the restructuring; provided that any such restructuring carried out after the closing of the Loan shall be at no cost to Borrowers. In addition, in the case of senior and junior notes, except in the case of an Event of Default under the Loan, the Construction Loanweighted average interest rate of the senior and junior notes shall in the aggregate, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s), if any, as calculated immediately following such restructuring, shall equal the aggregate debt service payments interest rate which would have been payable under was applicable to the Reduced Acquisition Loan, Loan immediately prior the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, had the restructuring not occurredrestructuring. Borrowers shall cooperate with all reasonable requests of Lender Administrative Agent in order to restructure the Loan and/or any of and create the Components, the First Mezzanine Loan, the Second New Mezzanine Loan and/or the Third Mezzanine Loan and/or to create and/or restructure one or more New Mezzanine Loan(s), if applicable, and shall, upon fifteen (15) Business Days written notice from Lender, which notice shall include the forms of documents for which Lender is requesting execution and delivery, (A) execute and deliver such documents, documents including, without limitation, limitation in the case of any the New Mezzanine Loan, a mezzanine note, a mezzanine loan agreement, a pledge and security agreement and a mezzanine cash management deposit account agreement, (B) cause Borrowers’ counsel to deliver such legal opinions, opinions and (C) create such a bankruptcy remote borrower under each the New Mezzanine Loan as, in each of the case of clauses each of (A), (B) and (C) above, shall be reasonably required by Lender Administrative Agent and required by any Rating Agency in connection therewith, all in form and substance reasonably satisfactory to LenderAdministrative Agent and satisfactory to any such Rating Agency, including, without limitation, the severance of this Agreement, the Mortgage and the other Loan Documents if requested by Lender. Except as may be required in connection with a Securitization pursuant to Section 9.1 hereof, Borrowers shall not be obligated to pay any costs or expenses incurred in connection with any such restructuring as set forth in this Section 9.8requested. In the event any Borrower Borrowers fails to execute and deliver such documents to Lender Administrative Agent within five ten (510) Business Days following such written notice request by LenderAdministrative Agent, and Lender sends a second notice to Borrowers with respect to the delivery of such documents containing a legend clearly marked in not less than fourteen (14) point bold face type, underlined, in all capital letters “POWER OF ATTORNEY IN FAVOR OF LENDER DEEMED EFFECTIVE FOR EXECUTION AND DELIVERY OF DOCUMENTS IF NO RESPONSE WITHIN 5 BUSINESS DAYS”, each Borrower hereby absolutely and irrevocably appoints Lender Administrative Agent as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect such transactions, each Borrower Borrowers ratifying all that such attorney shall do by virtue thereof, if any Borrower fails to execute and deliver such documents within five (5) Business Days of receipt of such second notice. It shall be an Event of Default if any Borrower Borrowers fails to comply with any of the terms, covenants or conditions of this Section 9.8 14.1.8 after the expiration of five fifteen (515) Business Days after the second notice thereof. Any restructuring or modification of the Loan pursuant to this Section 14.1.8 shall be at Administrative Agent’s sole cost and expense.
Appears in 1 contract
Restructuring of Loan. Lender, without in any way limiting Lender’s other rights hereunder, in its sole and absolute discretion, shall have the right at any time, at Lender’s sole cost and expense, time to require Borrowers Borrower to restructure the Loan or any of the Components into additional multiple notes (which may include component notes and/or or senior and junior notes) and/or or to create participation interests in the Loan or any of the ComponentsLoan, and which restructuring may include reallocation of principal amounts of the Loan and/or any (including, by way of example, the increase or decrease in the principal amount of the Componentssenior note and instrument securing same, and the First Mezzanine Loan, corresponding decrease or increase in the Second Mezzanine Loan and/or principal amounts of the Third Mezzanine Loan and/or junior note(s) and the security instrument(s) securing same) or the restructuring of a portion of the Loan and/or any of into a mezzanine loan (the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan to one or more of the foregoing or to one or more additional mezzanine loans (each, a “New Mezzanine Loan”) to the direct and/or indirect owners of the direct equity interests in Borrowers as reasonably, mutually determined by Lender and Borrowers and that are direct or indirect subsidiaries of HR HoldingsBorrower, secured by a pledge of such direct equity interests, the establishment of different interest rates and debt service payments for the Loan and/or any of and the Components, the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) and the payment of the Loan and/or any of and the Components, the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) in such order of priority as may be designated by Lender; provided, that (i) the total amounts of the Reduced Acquisition Loan, Loan and the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) immediately following such restructuring shall equal the amount of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuring, (ii) except in the weighted average spread above LIBOR case of an Event of Default under the Reduced Acquisition Loan, Loan or the Construction Loan, the First New Mezzanine Loan, the Second weighted average interest rate of the Loan and the New Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s), if any, immediately following such restructuring, shall, in the aggregate, equal the weighted average spread for all of interest rate which was applicable to the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuring, restructuring and (iii) except in the case of an Event of Default under the Loan or the New Mezzanine Loan, the debt service payments on the Reduced Acquisition Loan, Loan and the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s), if any, as calculated immediately following such restructuring, shall equal the aggregate debt service payments payment which would have been payable was due under the Reduced Acquisition Loan, Loan immediately prior to the Construction Loan, restructuring; provided that any such restructuring carried out after the First Mezzanine Loan, closing of the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, had the restructuring not occurredshall be at no material cost to Borrower. Borrowers Borrower shall cooperate with all reasonable requests of Lender in order to restructure the Loan and/or any of and create the Components, the First Mezzanine Loan, the Second New Mezzanine Loan and/or the Third Mezzanine Loan and/or to create and/or restructure one or more New Mezzanine Loan(s), if applicable, and shall, upon fifteen (15) Business Days written notice from Lender, which notice shall include the forms of documents for which Lender is requesting execution and delivery, (A) execute and deliver such documents, documents including, without limitation, in the case of any the New Mezzanine Loan, a mezzanine note, a mezzanine loan agreement, a pledge and security agreement and a mezzanine cash management deposit account agreement, (B) cause Borrowers’ Borrower’s counsel to deliver such legal opinions, opinions and (C) create such a newly formed bankruptcy remote borrower under each the New Mezzanine Loan as, in each of the case of clauses each of (A), (B) and (C) above, shall be reasonably required by Lender and required by any Rating Agency in connection therewith, all in form and substance reasonably satisfactory to LenderLender and satisfactory to any such Rating Agency, including, without limitation, including the severance of this Agreement, the Mortgage Security Instrument and the other Loan Documents if requested by Lender. Except as may be required in connection with a Securitization pursuant to Section 9.1 hereof, Borrowers shall not be obligated to pay any costs or expenses incurred in connection with any such restructuring as set forth in this Section 9.8requested. In the event any Borrower fails to execute and deliver such documents to Lender within five fifteen (515) Business Days following such written notice request by Lender, and Lender sends a second notice to Borrowers with respect to the delivery of such documents containing a legend clearly marked in not less than fourteen (14) point bold face type, underlined, in all capital letters “POWER OF ATTORNEY IN FAVOR OF LENDER DEEMED EFFECTIVE FOR EXECUTION AND DELIVERY OF DOCUMENTS IF NO RESPONSE WITHIN 5 BUSINESS DAYS”, each Borrower hereby absolutely and irrevocably appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect such transactions, each Borrower ratifying all that such attorney shall do by virtue thereof, if any Borrower fails to execute and deliver such documents within five (5) Business Days of receipt of such second notice. It shall be an Event of Default if any Borrower fails to comply with any of the terms, covenants or conditions of this Section 9.8 9 after the expiration of five fifteen (515) Business Days after the second written notice thereof. Borrower covenants and agrees that any such reallocation (as described above) will be in compliance with the representations and warranties set forth in Section 4.1 and Section 5.12 hereof.
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Restructuring of Loan. (a) Lender, without in any way limiting Lender’s other rights hereunder, in its sole and absolute discretion, shall have the right at any time, at Lender’s sole cost and expense, time to require Borrowers Borrower to restructure the Loan or any of the Components into additional multiple notes (which may include component notes and/or senior and junior notes) ), to re-allocate principal among component notes and/or senior and junior notes and/or to create participation interests in the Loan or any of the ComponentsLoan, which restructuring may include reallocation of principal amounts of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan and/or the restructuring of a portion of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan to one or more of the foregoing or to one or more additional mezzanine loans (each, a the “New Mezzanine Loan”) to the direct and/or or indirect owners of the equity interests in Borrowers as reasonably, mutually determined by Lender and Borrowers and that are direct or indirect subsidiaries of HR HoldingsBorrower, secured by a pledge of such interests, the establishment of different interest rates and debt service payments for the Loan and/or any of the Components, the First Mezzanine Loan, and the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) and the payment of the Loan and/or any of the Components, the First Mezzanine Loan, and the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) in such order of priority as may be designated by Lender; provided, provided that (i) the total principal amounts of the Reduced Acquisition LoanLoan (including any component notes), and the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) immediately following such restructuring shall equal the total principal amount of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuring, (ii) except in the weighted average spread above LIBOR case of the Reduced Acquisition occurrence of an Event of Default or a default beyond all notice and cure periods under the New Mezzanine Loan, or of a Casualty or Condemnation that results in the Construction Loan, payment of principal under the First Loan and/or the New Mezzanine Loan, the Second initial weighted average interest rate of the Loan and the New Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s), if any, immediately following such restructuring, shall, in the aggregate, equal the weighted average spread for all of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, immediately prior to the restructuringInterest Rate, and (iii) except in the case of the occurrence of an Event of Default and/or a default beyond all notice and cure periods under the New Mezzanine Loan, or of a Casualty or Condemnation that results in the payment of principal under the Loan and/or the New Mezzanine Loan, the aggregate debt service payments on the Reduced Acquisition Loan, Loan and the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s), if any, as calculated immediately following such restructuring, shall equal the aggregate debt service payments which would have been payable under the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, had the restructuring not occurred. Borrowers .
(b) Borrower shall cooperate with all reasonable requests of Lender in order to restructure the Loan and/or any of the ComponentsNote, the First Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan and/or to create and/or restructure one or more a New Mezzanine Loan(s)Loan, if applicable, and shall, upon fifteen ten (1510) Business Days written notice from Lender, which notice shall include the forms of documents for which Lender is requesting execution and delivery, (Ai) execute and deliver such documents, including, without limitation, in the case of any New Mezzanine Loan, a mezzanine note, a mezzanine loan agreement, a pledge and security agreement and a mezzanine cash management deposit account agreement, (Bii) cause Borrowers’ Borrower’s counsel to deliver such legal opinions, and (Ciii) create such a bankruptcy remote borrower under each the New Mezzanine Loan as, in each of the case cases of clauses (Ai), (Bii) and (Ciii) above, shall be reasonably required by Lender and required by any Rating Agency in connection therewith, all in form and substance reasonably satisfactory to Lender, including, without limitation, the severance of this Agreement, the Mortgage Security Instruments and the other Loan Documents if requested by Lender. Except as may be required in connection with a Securitization pursuant requested; provided, however, but subject to the last proviso of Section 9.1 9.4(a) hereof, Borrowers any such amendments required by Lender shall not result in any economic or other material adverse change in the transaction contemplated by this Agreement or the other Loan Documents.
(c) Borrower shall not be obligated to pay any costs or expenses incurred in connection with any such restructuring as set forth in this Section 9.8. 9.4 except for Borrower’s own legal costs and expenses and Borrower’s own accounting costs and expenses.
(d) In the event any Borrower fails to execute and deliver such documents described in this Section 9.4 to Lender within five ten (510) Business Days following such written notice by Lender, and Lender sends a second notice to Borrowers Borrower with respect to the delivery of such documents containing a legend clearly marked in not less than fourteen (14) point bold face type, underlined, in all capital letters “POWER OF ATTORNEY IN FAVOR OF LENDER DEEMED EFFECTIVE FOR EXECUTION AND DELIVERY OF DOCUMENTS IF NO RESPONSE WITHIN 5 10 BUSINESS DAYS”, each Borrower hereby absolutely and irrevocably appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect such transactions, each Borrower ratifying all that such attorney shall do by virtue thereof, if any Borrower fails to execute and deliver such documents within five ten (510) Business Days of receipt of such second notice. It shall be an Event of Default if any Borrower fails to comply with any of the terms, covenants or conditions of this Section 9.8 9.4 after the expiration of five ten (510) Business Days after the second notice thereof.
Appears in 1 contract
Restructuring of Loan. Lender, without in any way limiting Lender’s other rights hereunder, in its sole and absolute discretion, shall have the right at any time, at Lender’s sole cost and expense, time to require Borrowers Borrower to restructure the Loan or any of the Components into additional multiple notes (which may include component notes and/or senior and junior notes) and/or to create participation interests in the Loan or any of the ComponentsLoan, which restructuring may include reallocation of principal amounts of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Mortgage Loan and/or the Third Mezzanine Loan and/or or the restructuring of a portion of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Mortgage Loan and/or the Third Mezzanine Loan to one or more creation of the foregoing or to one or more an additional mezzanine loans loan (each, a the “New Mezzanine Loan”) to the direct and/or indirect owners of the equity interests in Borrowers as reasonably, mutually determined by Lender and Borrowers and that are direct or indirect subsidiaries of HR HoldingsBorrower, secured by a pledge of such interests, the establishment of different interest rates, floor interest rates and debt service payments for the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan, Mortgage Loan and the Third New Mezzanine Loan and any New Mezzanine Loan(s) and the payment of the Loan and/or any of the Components, the First Mezzanine Loan, the Second Mezzanine Loan, Mortgage Loan and the Third New Mezzanine Loan and any New Mezzanine Loan(s) in such order of priority as may be designated by Lender; provided, that (i) the total principal amounts of the Reduced Acquisition Loan, the Construction Loan, Mortgage Loan and the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s) immediately following such restructuring shall equal the total principal amount of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, the Mortgage Loan immediately prior to the restructuring, (ii) except in the case of a Mortgage Loan Event of Default, an Event of Default, and/or an Event of Default under the New Mezzanine Loan, the weighted average spread above LIBOR of the Reduced Acquisition Loan, the Construction Loan, Mortgage Loan and the First New Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any New Mezzanine Loan(s), if any, immediately following such restructuring, shall, in the aggregate, equal the weighted average spread for all of the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan to two and any previously existing New Mezzanine Loan(sone-half percent (2.50%), if any, immediately prior to the restructuring, and (iii) except in the case of a Mortgage Loan Event of Default, an Event of Default and/or an Event of Default under the New Mezzanine Loan, the debt service payments on the Reduced Acquisition Loan, the Construction Loan, Mortgage Loan and the First Mezzanine Loan, the Second Mezzanine Loan, the Third New Mezzanine Loan and any New Mezzanine Loan(s), if any, as calculated immediately following such restructuring, shall equal the aggregate debt service payments which would have been payable under the Reduced Acquisition Loan, the Construction Loan, the First Mezzanine Loan, the Second Mezzanine Loan, the Third Mezzanine Loan and any previously existing New Mezzanine Loan(s), if any, the Mortgage Loan had the restructuring not occurred; provided, further, that, notwithstanding anything to the contrary contained in this Section 9.7, Lender may, in its sole and absolute discretion, reallocate the application of amortization amounts to any portion of the Loan, the New Mezzanine Loan and/or the Mortgage Loan regardless of whether such reallocation results in any adverse effect, economic or otherwise change, with respect to the Loan, the New Mezzanine Loan and/or the Mortgage Loan. Borrowers Borrower shall cooperate with all reasonable requests of Lender in order to restructure the Loan and/or any of and the Components, the First Mortgage Loan and create a New Mezzanine Loan, the Second Mezzanine Loan and/or the Third Mezzanine Loan and/or to create and/or restructure one or more New Mezzanine Loan(s), if applicable, and shall, upon fifteen ten (1510) Business Days written notice from Lender, which notice shall include the forms of documents for which Lender is requesting execution and delivery, (A) execute and deliver such documents, documents including, without limitation, limitation in the case of any New Mezzanine Loan, a mezzanine note, a mezzanine loan agreement, a pledge and security agreement and a mezzanine cash management deposit account agreement, (B) cause Borrowers’ Borrower’s counsel to deliver such legal opinions, opinions and (C) create such a bankruptcy remote borrower under each the New Mezzanine Loan as, in each of the case of clauses (A), (B) and (C) above, shall be reasonably required by Lender and required by any Rating Agency in connection therewith, all in form and substance reasonably satisfactory to Lender, including, without limitation, the severance of this Agreement, the Mortgage Pledge Agreement and the other Loan Documents if requested by Lenderrequested. Except as may be required in connection with a Securitization pursuant to Section 9.1 hereof, Borrowers Borrower shall not be obligated to pay any costs or expenses incurred in connection with any such restructuring as set forth in this Section 9.89.7. In the event any Borrower fails to execute and deliver such documents to Lender within five ten (510) Business Days following such written notice by Lender, and Lender sends a second notice to Borrowers Borrower with respect to the delivery of such documents containing a legend clearly marked in not less than fourteen (14) point bold face type, underlined, in all capital letters “POWER OF ATTORNEY IN FAVOR OF LENDER DEEMED EFFECTIVE FOR EXECUTION AND DELIVERY OF DOCUMENTS IF NO RESPONSE WITHIN 5 10 BUSINESS DAYS”, each Borrower hereby absolutely and irrevocably appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect such transactions, each Borrower ratifying all that such attorney shall do by virtue thereof, if any Borrower fails to execute and deliver such documents within five ten (510) Business Days of receipt of such second notice. It shall be an Event of Default if any Borrower fails to comply with any of the terms, covenants or conditions of this Section 9.8 9.7 after the expiration of five ten (510) Business Days after the second notice thereof.
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Samples: First Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
