Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge or otherwise transfer the Loan or any portion thereof or interest therein to any Person, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public single asset or pooled loan securitizations. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”). (b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts to: (i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, the information set forth on Schedule VI attached hereto, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers or opinions of counsel acceptable to Lender and the Rating Agencies; (ii) provide opinions of counsel, which may be relied upon by Lender and the NRSROs, and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor and any Affiliate of Borrower or Guarantor, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies; (iii) provide updated (as of the closing date of any Secondary Market Transaction) representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, as Lender or the Rating Agencies may require; (iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender or the Rating Agencies may require; (v) provide access to, and conduct tours of, the Property; and (vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information. (c) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements. (d) If requested by Lender, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably requested by Lender.
Appears in 3 contracts
Samples: Loan Agreement (Moody National REIT I, Inc.), Loan Agreement (Moody National REIT I, Inc.), Loan Agreement (Moody National REIT I, Inc.)
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions transaction referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “"Secondary Market Transaction” Transactions" and the transactions referred to in clause (iii) shall hereinafter be referred to as a “"Securitization”". Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “"Securities”").
(b) If requested by Lender, Borrower shall use commercially reasonable efforts to assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market TransactionsTransactions at Lender's sole cost and expense, including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, and the information set forth on Schedule VI attached heretoManager, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s 's and, if appropriate, Phase II’s's), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “"Updated Information”"), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance, and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor Property and any Affiliate of Borrower or Guarantorand Affiliates, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;; and
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s 's organizational documents as Lender reasonably requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) change the interest rate, the stated maturity or the Rating Agencies may require;
amortization of principal as set forth herein or in the Note, or (vB) provide access to, and conduct tours of, the Property; and
(vi) provide certifications modify or amend any other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination material economic term of the Loan or any Updated InformationLoan.
(c) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements.
(d) If requested by Lender, Borrower shall use commercially reasonable efforts provide Lender at Lender's sole cost and expense with the following financial statements (it being understood that Lender shall request summaries of financial statements if it anticipates that the principal amount of the Loan at the time of Securitization may, or if the principal amount of the Loan at any time during which the Loan is included in a Securitization does, equals or exceeds 10% of the aggregate principal amount of all mortgage loans included in the Securitization):
(i) As of the Closing Date, a balance sheet with respect to provide Lenderthe Property for the two most recent Fiscal Years, promptly upon requestmeeting the requirements of Section 210.3-01 of Regulation S-X of the Securities Act and statements of income and statements of cash flows with respect to the Property for the three most recent Fiscal Years, with any meeting the requirements of Section 210.3-02 of Regulation S-X, and, to the extent that such balance sheet is more than 135 days old as of the Closing Date, interim financial statements of the Property meeting the requirements of Section 210.3-01 and 210.3-02 of Regulation S-X (all of such financial statements, financialcollectively, statistical or operating information the "Standard Statements"); provided, however, with respect to any Property that has been acquired by Borrower from an unaffiliated third party (an "Acquired Property") and as to which the other conditions set forth in Section 210.3-14 of Regulation S-X for the provision of financial statements in accordance with such Section have been met (other than any Property that is a hotel, nursing home or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items property that would be deemed to constitute a business and not real estate under Regulation S-X and as to which the other conditions set forth in Section 210.3-05 of Regulation S-X for provision of financial statements in accordance with such Section have been met ( a "Business Property")), in lieu of the Standard Statements otherwise required by this Section 9.1(c)(i), Borrower shall instead provide the financial statements required by such Section 210.3-14 of Regulation S-X ; provided, further, however, with respect to any Business Property which is an Acquired Property, Borrower shall instead provide the financial statements required by Section 210.3-05 (such Section 210.3-14 or Section 210.3-05 financial statements referred to herein as ("Acquired Property Statements").
(ii) Not later than 30 days after the end of each fiscal quarter following the Closing Date, a balance sheet of the Property as of the end of such fiscal quarter, meeting the requirements of Section 210.3-01 of Regulation S-X, and statements of income and statements of cash flows of the Property for the period commencing on the day following the last day of the most recent Fiscal Year and ending on the date of such balance sheet and for the corresponding period of the most recent Fiscal Year, meeting the requirements of Section 210.3-02 of Regulation S-X (provided, that if for such corresponding period of the Securities issued in connection with a Securitization most recent Fiscal Year Acquired Property Statements were offered publicly) permitted to satisfy any and all disclosure requirements be provided hereunder pursuant to the Securities Act paragraph (includingi) above, but not limited to, Regulation ABBorrower shall instead provide Acquired Property Statements for such corresponding period), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably . If requested by Lender, Borrower shall also provide "summarized financial information," as defined in Section 210.1-02(bb) of Regulation S-X, with respect to such quarterly financial statements.
(iii) Not later than 60 days after the end of each Fiscal Year following the Closing Date, a balance sheet of the Property as of the end of such Fiscal Year, meeting the requirements of Section 210.3-01 of Regulation S-X, and statements of income and statements of cash flows of the Property for such Fiscal Year, meeting the requirements of Section 210.3-02
Appears in 3 contracts
Samples: Loan Agreement (Glimcher Realty Trust), Loan Agreement (Glimcher Realty Trust), Loan Agreement (Glimcher Realty Trust)
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any PersonLoan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or interest therein in one or more private or public single asset or pooled loan securitizations. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or marketplace, by prospective investors, the Rating Agencies or Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including using commercially reasonable efforts to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, GuarantorGuarantor(s), any Affiliate of Borrower or Affiliated Lease (including, without limitation, the PUREgraphite Lease), any Borrower Affiliated Tenant (including, without limitation, the PUREgraphite Tenant), any Borrower Affiliated Lease Guarantor (including, without limitation, the PUREgraphite Guarantor), any Borrower Affiliated Lease Guaranty (including, without limitation, the PUREgraphite Guaranty) and the Manager (if any), including, without limitation, the information set forth on Schedule VI Exhibit B attached hereto, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, and (C) provide updated appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and the NRSROsLender, trustee in any Securitization, underwriters, NRSROs and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrowerthe Loan Documents, Guarantor and any Affiliate of Borrower or Guarantorand its Affiliates, which counsel and opinions shall be satisfactory to Lender and the Rating AgenciesAgencies and which may include additional opinions regarding Australian Persons and/or Australian assets as may be requested by the Rating Agencies and/or reasonably requested by Lender;
(iii) provide updated (updated, as of the closing date of any Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;; and
(iv) subject (A) review any Disclosure Document or any interim draft thereof furnished by Lender to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender or the Rating Agencies may require;
(v) provide access to, and conduct tours of, the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies Borrower with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(c) Borrower agrees contained therein that (i) was furnished to Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower in connection with the preparation of such Disclosure Document or in connection with the underwriting or closing of the Loan, including financial statements of Borrower and Guarantor, operating statements and rent rolls with respect to the Property, and (B) within three (3) Business Days following Borrower’s receipt thereof, provide to Lender in writing any revisions to such Disclosure Document or interim draft thereof necessary or advisable to insure that such reviewed information does not contain any untrue statement of its a material fact or omit to state any material fact necessary to make statements contained therein not misleading.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to Lendermake payments on all or a part of the Loan) collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender expects that the principal amount of the Loan together with any Person Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (including10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Property and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, investors a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Property for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or prospective investors if Lender determines that the Property is the Significant Obligor and the Property (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Property (to the extent available to Borrower) if, in connection with a Securitization, Lender expects there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of affiliated Tenants within all of the mortgage loans included or expected to be included in the SecuritiesSecuritization such that such Tenant or group of affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the NRSROspreparation of the Disclosure Documents and on an ongoing basis, investment banking firmsfinancial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, accounting firmsas specified by Lender, law firms but only for so long as such entity or entities are a Significant Obligor and other third-party advisory and service providers either (x) filings pursuant to the Exchange Act in connection with or relating to a Securitizationthe Securitization (an “Exchange Act Filing”) actually or potentially involved in or related are required to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the manner prescribed, by Securities under Regulation AB or applicable Legal Requirements.
(de) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Property alone or the Property and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) Any financial data or financial statements provided pursuant to this Section 9.1 shall be furnished to Lender within the following time periods:
(i) with respect to information requested in connection with the preparation of Disclosure Documents for a Securitization, within ten (10) Business Days after notice from Lender; and
(ii) with respect to ongoing information required under Section 9.1(d) and (e) above, (1) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (2) not later than seventy-five (75) days after the end of each Fiscal Year of Borrower.
(g) If requested by Lender, Borrower shall use commercially reasonable efforts provide Lender, promptly, and in any event within three (3) Business Days following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by the Lender.
(h) If requested by Lender, whether in connection with a Securitization or at any time thereafter during which the Loan and any Related Loans are included in a Securitization, Borrower shall provide Lender, promptly upon request, a list of Tenants (including all affiliates of such Tenants) that in the aggregate (1) occupy 10% or more (but less than 20%) of the total floor area of the improvements or represent 10% or more (but less than 20%) of aggregate base rent, and (2) occupy 20% or more of the total floor area of the improvements or represent 20% or more of aggregate base rent.
(i) All financial statements provided by Borrower pursuant to this Section 9.1(c), (d), (e) or (f) shall be prepared in accordance with GAAP, and shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and other applicable Legal Requirements. All financial statements relating to a Fiscal Year shall be audited by Independent Accountants in accordance with generally accepted auditing standards, Regulation S-X or Regulation S-K, as applicable, Regulation AB, and all other applicable Legal Requirements, shall be accompanied by the manually executed report of the Independent Accountants thereon, which report shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and all other applicable Legal Requirements, and shall be further accompanied by a manually executed written consent of the Independent Accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such Independent Accountants and the reference to such Independent Accountants as “experts” in any Disclosure Document and Exchange Act Filing (or comparable information is required to otherwise be available to holders of the Securities under Regulation AB or applicable Legal Requirements), all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial statements shall be certified by the chief financial officer of Borrower, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this paragraph.
(j) In connection with any financial statementsSecondary Market Transaction, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary have the right, and Borrower hereby authorizes Lender, to disclose any and all information in Lender’s possession regarding Borrower, Guarantor, any Manager, any tenants and provisions of any leases, the Property and/or the Loan in any Disclosure Document, in any promotional, pre-marketing materials or appropriate (including items required (marketing materials that are prepared by or items that would be required if the Securities issued on behalf of Lender in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws such Secondary Market Transaction or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document oral or written presentation made by or on behalf of Lender, including without limitation, to any Exchange Act Filing actual or as may otherwise be reasonably requested by Lenderpotential investors and any Rating Agencies and other NRSROs.
Appears in 2 contracts
Samples: Loan Agreement (NOVONIX LTD), Loan Agreement (NOVONIX LTD)
Sale of Mortgage and Securitization. Subject to Section 9.4 hereof and the limitations set forth in Section 9.3 hereof:
(a) Lender shall have the right (i) to sell, assign, pledge syndicate or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any PersonLoan, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, Borrower Borrowers shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or marketplace, by prospective investors, the Rating Agencies or Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market TransactionsTransactions (provided same shall not increase Borrower’s obligations or decrease Borrowers’ rights), including using commercially reasonable efforts to:
(i) (A) provide updated financial and other information with respect to the PropertyProperties, the business operated at the PropertyProperties, BorrowerBorrowers and Property Manager, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, including the information set forth on Schedule VI 8 attached hereto, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenanttenant) relating to the PropertyProperties, and (C) provide updated appraisals, market studies, environmental reviews reports (Phase I’s Is and, if appropriate, Phase II’sIIs), property condition reports and other due diligence investigations of the Property Properties (collectively, the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating AgenciesAgencies and reasonably acceptable to Lender;
(ii) provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROstrustee in any Securitization, underwriters, NRSROs and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, consolidation or any other opinion customary with respect for borrowers to loans comparable to the Loan in size and character deliver in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the PropertyProperties, Borrowerthe Loan Documents, Guarantor and any Affiliate of Borrower or GuarantorBorrowers and their Affiliates, which counsel and opinions shall be reasonably satisfactory to Lender and the Rating Agencies;; and
(iii) provide updated (updated, as of the closing date of any Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, as Lender or the Rating Agencies may require;
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender or the Rating Agencies may require;
(v) provide access to, and conduct tours of, the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated InformationDocuments.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender expects that Borrowers alone or Borrowers and one or more Affiliates of any Borrower agrees (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrowers shall furnish to Lender upon request the following financial information:
(i) if Lender expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may disclose equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender expects that the principal amount of the Loan together with any information relating Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to Borrower, its Affiliatesbe included in the Securitization, the Property or the Loan financial statements required under Item 1112(b)(2) of Regulation AB (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (includingwhich includes, but may not be limited to, investors a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or prospective investors if Lender determines that the Properties are the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) were acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrowers shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any tenant of any Property if, in connection with a Securitization, Lender expects there to be, as of the cut-off date for such Securitization, a concentration with respect to such tenant or group of Affiliated tenants within all of the mortgage loans included or expected to be included in the SecuritiesSecuritization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor. Borrowers shall furnish to Lender, in connection with the NRSROspreparation of the Disclosure Documents and on an ongoing basis, investment banking firmsfinancial data and/or financial statements with respect to such tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, accounting firmsas specified by Lender, law firms but only for so long as such entity or entities are a Significant Obligor and other third-party advisory and service providers either (x) filings pursuant to the Exchange Act in connection with or relating to a Securitizationthe Securitization (an “Exchange Act Filing”) actually or potentially involved in or related are required to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the manner prescribed, by Securities under Regulation AB or applicable Legal Requirements.
(de) If Lender determines that Borrowers alone or Borrowers and one or more Affiliates of any Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrowers shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) Any financial data or financial statements provided pursuant to this Section 9.1 shall be furnished to Lender within the following time periods:
(i) with respect to information requested in connection with the preparation of Disclosure Documents for a Securitization, within ten (10) Business Days after notice from Lender to the extent such information is in Borrower’s possession (or can reasonably be obtained by a Borrower or Sponsor at no additional cost other than de minimis costs); and
(ii) with respect to ongoing information required under Section 9.1(d) and (e) above, (1) not later than thirty (30) days after the end of each fiscal quarter of Borrowers and (2) not later than seventy-five (75) days after the end of each Fiscal Year of Borrowers.
(g) If requested by Lender, Borrower Borrowers shall use commercially reasonable efforts provide Lender, promptly, and in any event within five (5) Business Days following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
(h) If requested by Lender, whether in connection with a Securitization or at any time thereafter during which the Loan and any Related Loans are included in a Securitization, Borrowers shall provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate a list of tenants of the Properties (including items required all affiliates of such tenants) that in the aggregate (1) occupy 10% or more (but less than 20%) of the total floor area of the improvements or represent 10% or more (but less than 20%) of aggregate base rent, and (2) occupy 20% or more of the total floor area of the improvements or represent 20% or more of aggregate base.
(i) All financial statements provided by Borrowers pursuant to this Section 9.1(c), (d), (e) or (f) shall be prepared in accordance with GAAP (or items that would be required if a tax basis of accounting consistently applied), and shall meet the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (includingof Regulation S-K or Regulation S-X, but not limited toas applicable, Regulation AB), the Exchange Act, any and other applicable securities laws Legal Requirements. All financial statements relating to a Fiscal Year shall be audited by independent accountants in accordance with generally accepted auditing standards, Regulation S-X or any amendmentRegulation S-K, modification or replacement to any of the foregoing) or required by any as applicable, Regulation AB, and all other applicable Legal Requirements, in each caseshall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and all other applicable Legal Requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in connection with form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document or and any Exchange Act Filing and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document and Exchange Act Filing (or as may comparable information is required to otherwise be reasonably requested available to holders of the Securities under Regulation AB or applicable Legal Requirements), all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial statements shall be certified by Lenderthe chief financial officer of each Borrower, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this paragraph.
Appears in 2 contracts
Samples: Loan Agreement (American Realty Capital New York City REIT, Inc.), Loan Agreement (American Finance Trust, Inc)
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions transaction referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. .” Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”).
(b) If requested by Lender, Borrower shall assist Lender Lender, in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, BorrowerBorrower and the Manager, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, the information set forth on Schedule VI attached hereto, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriateincluding, Phase II’sI and Phase II reports, as applicable), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance and “true sale” or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor Property and any Affiliate of Borrower or Guarantorand Affiliates, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;; and
(iv) subject to Section 9.3, execute modifications and such amendments to the Loan Documents and Borrower’s organizational documents reasonably requested by Lender, including, without limitation, amending the Monthly Payment Date (consistent with the requirements contained in the definition of such term), the execution of one or more replacement loan agreements, as may be requested by Lender or the Rating Agencies may require;to effect the Securitization and/or deliver one or more new component notes to replace the original note or modify the original note to reflect multiple components of the Loan (and such new notes or modified note shall comply with Section 11.29), and modify the Cash Management Agreement, if applicable, with respect to the newly created components such that the pricing and marketability of the Securities and the size of each class of Securities and the rating assigned to each such class by the Rating Agencies shall provide the most favorable rating levels and achieve the optimum rating levels for the Loan; provided, however, any such amendments or agreements will not materially alter the payment terms set forth in this Agreement or the other Loan Documents or materially and adversely affect Borrower or impose additional material obligations or liabilities upon Borrower and shall comply with Section 11.29.
(v) provide access to, attend management meetings and conduct tours of, of the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(c) If, at the time one or more Disclosure Documents are being prepared for a Securitization, Lender expects that Borrower agrees that alone or Borrower and one or more Affiliates of Borrower collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request (i) the selected financial data or, if applicable, Historical Net Operating Income, required under Item 1112(b)(1) of Regulation AB, if Lender may disclose any information relating to Borrower, its Affiliates, expects that the Property or principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed ten percent (including information provided by 10%) (but less than twenty percent (20%) of the aggregate principal amount of all mortgage loans included or on behalf of Borrower or any of its Affiliates expected to Lender) to any Person (includingbe included, but not limited toas applicable, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually Securitization or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings financial statements required under Item 1112(b)(2) of Regulation AB, if Lender expects that the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and conclusions at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included, as applicable, in the Securitization. Such financial data or financial statements shall be furnished to Lender (A) within ten (10) Business Days after notice from Lender in connection with the preparation of Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (C) not later than seventy-five (75) days after the end of each fiscal year of Borrower; provided, however, that Borrower shall not be obligated to furnish financial data or financial statements pursuant to clauses (B) or (C) of this sentence with respect to any period for which a filing pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) is not required. If requested by Lender, Borrower shall furnish to Lender financial data and/or financial statements (if available to Borrower) for any Tenant of any third-party due diligence report obtained by of the Property if, in connection with a Securitization, Lender expects there to be, with respect to such tenant or other Indemnified Persons may group of affiliated tenants, a concentration within all of the mortgage loans included or expected to be made publicly available if requiredincluded, and as applicable, in the manner prescribed, by applicable Legal RequirementsSecuritization such that such tenant or group of affiliated tenants would constitute a Significant Obligor.
(d) All financial data and financial statements provided by Borrower hereunder pursuant to Section 9.1(c) shall be prepared in accordance with GAAP and shall meet the requirements of Regulation AB and other applicable legal requirements. All financial statements referred to in Section 9.1(c)(ii) above shall be audited by independent accountants of Borrower acceptable to Lender in accordance with Regulation AB and all other applicable legal requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation AB and all other applicable legal requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the same time as the related financial statements are required to be provided. All financial data and financial statements (audited or unaudited) provided by Borrower under Section 9.1(c) shall be accompanied by an Officer’s Certificate which shall state that such financial statements meet the requirements set forth in the first sentence of this Section 9.1(d).
(e) If requested by Lender, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information or other information information, as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would to be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws AB or any amendment, modification or replacement to any of the foregoing) thereto or required by any other Legal Requirements, in each case, legal requirements in connection with any Disclosure Document or any Exchange Act Filing or as may shall otherwise be reasonably requested by Lender.
(f) In the event Lender determines, in connection with a Securitization, that the financial data and financial statements required in order to comply with Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the provisions of Sections 9.1(c) and (d), Lender may request, and Borrower shall promptly provide, such other financial statements as Lender determines to be necessary or appropriate for such compliance.
Appears in 2 contracts
Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof as a whole loan or interest therein to any Personparts thereof, (ii) to sell participation interests in the Loan to any Person, entity other than to a publicly traded real estate investment trust of which the majority of its assets are office properties or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions transaction referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “"Secondary Market Transaction” Transactions" and the transactions referred to in clause (iii) shall hereinafter be referred to as a “"Securitization”". Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “"Securities”".).
(b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, BorrowerBorrower and the Manager, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, the information set forth on Schedule VI attached hereto, and (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s 's and, if appropriateapplicable, Phase II’s's), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “"Updated Information”"), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions opinion of counsel acceptable to Lender and the Rating Agencies;
(ii) (A) provide the Insolvency Opinion or any changes or modifications thereto requested by Lender or the Ratings Agencies and (B) cooperate with Lender in obtaining any other opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance, true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the PropertyProperty and, Borrower, Guarantor Borrower and any Affiliate of Borrower or Guarantor, Affiliates which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;; and
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s 's organizational documents as Lender or the Rating Agencies may require;
(v) provide access to, and conduct tours of, the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(c) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements.
(d) If requested by Lender, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) change the interest rate, the stated maturity or the amortization of principal as set forth herein or in the Note, or (B) except as expressly permitted by the Cooperation Agreement, modify or amend any other material economic term of the Loan (including, without limitation, the provisions of Article VIII above; provided, however, that to the extent Borrower is required to incur more than a de minimis cost or expense to satisfy a request made by Lender after the Closing Date with respect to a Secondary Market Transaction, Lender shall be responsible for reimbursing Borrower for any such reasonable cost or expense incurred.
Appears in 2 contracts
Samples: Loan Agreement (Reckson Operating Partnership Lp), Loan Agreement (Reckson Associates Realty Corp)
Sale of Mortgage and Securitization. Subject to Section 9.4 hereof:
(a) Lender Agent and Lenders shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any PersonLoan, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization Secondary Market Transaction are hereinafter referred to as “Securities”). At Agent’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by LenderAgent, Borrower shall reasonably cooperate with Agent and assist Lender Agent in satisfying the market standards to which Lender Agent customarily adheres or which may be reasonably required in the marketplace or marketplace, by prospective investors, the Rating Agencies or Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including using commercially reasonable efforts to:
(i) (A) provide updated financial and other information with respect to the each Property, the business operated at the each Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantorand the Manager, including, without limitation, the information set forth on Schedule VI Exhibit A attached hereto, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the each Property, and (C) provide updated appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the each Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel reasonably acceptable to Lender Agent and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and the NRSROsAgent, trustee in any Securitization, underwriters, NRSROs and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or reasonably required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the each Property, Borrowerthe Loan Documents, Guarantor and any Affiliate of Borrower or Guarantorand its Affiliates, which counsel and opinions shall be satisfactory reasonably acceptable to Lender Agent and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;; and
(iv) subject (A) review any Disclosure Document or any interim draft thereof furnished by Agent to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender or the Rating Agencies may require;
(v) provide access to, and conduct tours of, the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies Borrower with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(c) Borrower agrees contained therein that (i) Lender may disclose any information relating was furnished to Borrower, its Affiliates, the Property or the Loan (including information provided Agent by or on behalf of Borrower in connection with the preparation of such Disclosure Document or in connection with the underwriting or closing of the Loan, including financial statements of Borrower and Guarantor, operating statements and rent rolls with respect to the Properties, and (B) within three (3) Business Days following Borrower’s receipt thereof, provide to Agent in writing any revisions to such Disclosure Document or interim draft thereof necessary or advisable to insure that such reviewed information does not contain any untrue statement of its a material fact or omit to state any material fact necessary to make statements contained therein not misleading.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Agent reasonably expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to Lendermake payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Agent upon request the following financial information:
(i) if Agent expects that the principal amount of the Loan together with any Person Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (including10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for each Property and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(l) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Agent expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, investors a balance sheet with respect to the entity that Agent determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to each Property for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or prospective investors if Agent determines that the Properties are the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) were acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Agent, Borrower shall, promptly upon Agent’s request, furnish to Agent financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Agent, for any Tenant under any Lease at any Property if, in connection with a Securitization, Agent expects there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants under any Lease within all of the mortgage loans included or expected to be included in the SecuritiesSecuritization such that such Tenant or group of Affiliated Tenants under any Lease would constitute a Significant Obligor. Borrower shall furnish to Agent, in connection with the NRSROspreparation of the Disclosure Documents and on an ongoing basis, investment banking firmsfinancial data and/or financial statements with respect to such Tenants under any Lease meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, accounting firmsas specified by Agent, law firms but only for so long as such entity or entities are a Significant Obligor and other third-party advisory and service providers either (x) filings pursuant to the Exchange Act in connection with or relating to a Securitizationthe Securitization (an “Exchange Act Filing”) actually or potentially involved in or related are required to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the manner prescribed, by Securities under Regulation AB or applicable Legal Requirements.
(de) If Agent reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Agent, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Agent, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) Any financial data or financial statements provided pursuant to this Section 9.1 shall be furnished to Agent within the following time periods:
(i) with respect to information requested in connection with the preparation of Disclosure Documents for a Securitization, within ten (10) Business Days after notice from Agent; and
(ii) with respect to ongoing information required under Section 9.1(d) and (e) above, (1) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (2) not later than seventy-five (75) days after the end of each Fiscal Year of Borrower.
(g) If requested by LenderAgent, Borrower shall use commercially reasonable efforts to provide LenderAgent, promptly upon requestpromptly, and in any event within five (5) Business Days following Agent’s request therefor, with any other or additional financial statements, or financial, statistical or operating information or other information information, as Lender Agent shall reasonably determine is necessary or appropriate (including items required (or items that would to be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (includingRegulation S-K or Regulation S-X, but not limited toas applicable, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) thereto or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing Requirements relating to a Securitization or as may shall otherwise be reasonably requested by Lenderthe Agent.
(h) If requested by Agent, whether in connection with a Securitization or at any time thereafter during which the Loan and any Related Loans are included in a Securitization, but not more than three times within any twelve (12) month period, Borrower shall provide Agent, within five (5) days after Agent’s request, a list of Tenants (including all affiliates of such Tenants) that in the aggregate of all the Properties (1) occupy 10% or more (but less than 20%) of the total floor area of the improvements or represent 10% or more (but less than 20%) of aggregate base rent, and (2) occupy 20% or more of the total floor area of the improvements or represent 20% or more of aggregate base rent.
(i) All financial statements provided by Borrower pursuant to this Section 9.1(c), (d), (e) or (f) shall be prepared in accordance with GAAP, and shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and other applicable Legal Requirements. All financial statements relating to a Fiscal Year shall be audited by Independent Accountants in accordance with generally accepted auditing standards, Regulation S-X or Regulation S-K, as applicable, Regulation AB, and all other applicable Legal Requirements, shall be accompanied by the manually executed report of the Independent Accountants thereon, which report shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and all other applicable Legal Requirements, and shall be further accompanied by a manually executed written consent of the Independent Accountants, in form and substance reasonably acceptable to Agent, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such Independent Accountants and the reference to such Independent Accountants as “experts” in any Disclosure Document and Exchange Act Filing (or comparable information is required to otherwise be available to holders of the Securities under Regulation AB or applicable Legal Requirements), all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial statements shall be certified by the chief financial officer or other authorized representative (whose function is similar to that of a chief financial officer) of Borrower, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this paragraph.
(j) In connection with any Secondary Market Transaction, Agent shall have the right, and Borrower hereby authorizes Agent, to disclose any and all information in Agent’s possession regarding Borrower, Guarantor, any Manager, any Property and/or the Loan in any Disclosure Document, in any promotional or marketing materials that are prepared by or on behalf of Agent in connection with such Secondary Market Transaction or in connection with any oral or written presentation made by or on behalf of Agent, including without limitation, to any actual or potential investors and any Rating Agencies and other NRSROs.
(k) Agent shall provide Borrower with prior written notice if Regulation S-K, Regulation S-X or Regulation AB is applicable pursuant to a Securitization.
Appears in 2 contracts
Samples: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan as a whole loan or sell or otherwise transfer any portion thereof or any interest therein to any Persontherein, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or any interest therein in one or more private or public single asset or pooled loan securitizations. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions transaction referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. .” Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities.”).
(b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or marketplace, by the Rating Agencies or applicable by any Legal Requirements in connection with any Secondary Market TransactionsTransactions (including, including using commercially reasonable efforts without limitation, any Exchange Act Filings or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements), including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, Guarantor and Manager (including, without limitation, the information set forth on Schedule VI attached 9.1(b) hereto), (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Property and (C) provide updated appraisals, market studies, environmental audits, reviews and reports (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in required under clauses (A), (B) and (C) shall hereinafter be referred to collectively as the “Updated Information”), together, if customary, together with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, NRSROs and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance, and “true lease”, “true sale” or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor and any Affiliate of Borrower or Guarantor, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide provide, and cause to be provided, updated (as of the closing date of any Secondary Market Transaction) representations and warranties made in the Loan Documents and make, and cause to be made, such additional representations and warrantieswarranties as may be requested by Lender or the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof;
(iv) execute, and cause to be executed, such amendments, replacements or other modifications to Borrower’s Organizational Documents or the Loan Documents as may be requested by Lender or the Rating Agencies to effect the Secondary Market Transactions, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein, in each case, consistent in accordance with factthe applicable requirements of the Rating Agencies; provided, as Lender however, that Borrower shall not be required to amend, restate or otherwise modify any Loan Document if such amendment, restatement or other modification would (A) increase the initial weighted average interest rate or change the amortization of principal set forth herein or in the Note (except that the weighted average interest rate or the Rating Agencies amortization of principal may require;
subsequently change due to involuntary prepayments or if an Event of Default shall occur) or (ivB) subject to Section 9.3, execute modifications and amendments to amend or otherwise modify any other material economic term of the Loan Documents and Borrower’s organizational documents as Lender or the Rating Agencies may require;Loan; and
(v) attend management meetings with respect to Borrower or the Property, provide access to, to the Property and conduct tours of, of the Property; and
(vi) provide certifications provide, and cause to be provided, certificates or other evidence of reliance acceptable satisfactory to Lender and the Rating Agencies with respect to any information or third party reports and other information obtained in connection with the origination of the Loan or any Updated Information from Borrower, Guarantor, any Affiliate of Borrower or Guarantor, Manager and any accountants, appraisers, engineers, environmental assessment experts and other experts or third party providers of such information, reports or Updated Information.
(c) If, at the time one or more Disclosure Documents are being prepared for or in connection with a Securitization, Lender expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Property and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Property for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Property is the Significant Obligor and the Property (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any tenant of the Property if, in connection with a Securitization, Lender expects there to be, as of the cut-off date for such Securitization, a concentration with respect to such tenant or group of Affiliated tenants within all of the mortgage loans included or expected to be included in the Securitization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, on an ongoing basis, financial data or financial statements with respect to such tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (i) Exchange Act Filings in connection with or relating to the Securitization are required to be made under applicable Legal Requirements or (ii) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of any Borrower collectively, or the Property alone or the Property and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (i) Exchange Act Filings are required to be made under applicable Legal Requirements or (ii) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) Any financial data or financial statements provided pursuant to this Section 9.1 shall be furnished to Lender within the following time periods:
(i) with respect to information requested in connection with the preparation of Disclosure Documents for a Securitization, within ten (10) Business Days after notice from Lender; and
(ii) with respect to ongoing information required under Sections 9.1(d) and (e) above, (A) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (B) not later than seventy-five (75) days after the end of each Fiscal Year of Borrower.
(g) All financial data and financial statements provided by Borrower hereunder pursuant to Sections 9.1(c), (d), (e) and (f) hereof shall be prepared in accordance with GAAP (or such other accounting basis reasonably acceptable to Lender) and, if applicable, shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and any and all other applicable Legal Requirements. All financial statements relating to a Fiscal Year shall be audited by independent accountants of Borrower reasonably acceptable to Lender in accordance with generally accepted auditing standards, Regulation S-X or Regulation S-K, as applicable, Regulation AB, and all other applicable Legal Requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and all other applicable Legal Requirements, and shall be further accompanied by a manually executed consent of the independent accountants, in form and substance reasonably acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document, any Exchange Act Filing or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document, any Exchange Act Filing or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements, all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial data and financial statements (audited or unaudited) provided by Borrower shall be accompanied by an Officer’s Certificate which shall state that such financial data and financial statements meet the requirements set forth in the first sentence of this paragraph.
(h) In the event Lender reasonably determines, in connection with a Securitization, that financial statements and financial data required in order to comply with Regulation AB or any amendment, modification or replacement thereto or any other Legal Requirements are other than as provided herein, then notwithstanding the foregoing provisions of this Section 9.1, Lender may request, and Borrower shall promptly provide, such other financial statements and financial data as Lender reasonably determines to be necessary or appropriate for such compliance.
(i) Without limiting the generality of Section 9.1(h) above, if requested by Lender, Borrower shall promptly provide Lender with any financial statements or financial, statistical, operating or other information as Lender shall determine to be required pursuant to Regulation AB or any amendment, modification or replacement thereto or any other Legal Requirements in connection with any Disclosure Document, any Exchange Act Filing or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements or as shall otherwise be reasonably requested by Lender.
(j) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property or any aspect of the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (includingthe parties requesting such information and, but not limited to, investors or prospective investors in the Securitiesif applicable, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved NRSROs in or related to connection with any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) Transaction. Borrower also understands that the findings and conclusions of any third-party due diligence report obtained by Lender or other Securitization Indemnified Persons Parties may be made publicly available if required, and in the manner prescribed, by Section 15E(s)(4)(A) of the Exchange Act, any rules promulgated thereunder or any other applicable Legal Requirements.
(dk) If requested by In connection with Lender, Borrower shall use commercially reasonable ’s efforts to provide Lendereffect any Secondary Market Transaction, promptly upon requestall reasonable, with any financial statements, financial, statistical out-of-pocket third party costs and expenses incurred by Borrower and Guarantor on or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if prior to the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements closing of such Secondary Market Transaction pursuant to the Securities Act this Section 9.1 (including, but not limited to, Regulation AB)without limitation, the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any fees and expenses of the foregoingRating Agencies but excluding Borrower and Guarantor’s own legal fees) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise shall be reasonably requested reimbursed by Lender.
Appears in 2 contracts
Samples: Loan Agreement (Ionis Pharmaceuticals Inc), Loan Agreement (Ionis Pharmaceuticals Inc)
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public single asset securitizations or pooled loan securitizations. (The transactions referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”). Lender agrees that it shall not close any Securitization prior to (15) days following the Closing Date.
(b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the PropertyIndividual Properties, the business operated at the PropertyIndividual Properties, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, and the information set forth on Schedule VI attached heretoManager, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Individual Properties and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property Individual Properties in connection with any Securitization that occurs more than one (1) year after the date hereof (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies; provided, however, that Lender will use its reasonable best efforts to limit the circumstances in which Borrower will be required to duplicate its efforts or third party costs in complying with the foregoing requirements;
(ii) provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, consolidation and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor Individual Properties and any Affiliate of Borrower or Guarantorand Affiliates, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;require and as are customary in Secondary Market Transactions and as are consistent with the facts covered by such representations and warranties as they exist as of the date thereof; and
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as reasonably requested by Lender and that are customary in Secondary Market Transactions; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) change the interest rate, the stated maturity or the Rating Agencies may require;
amortization of principal as set forth herein or in the Note, or (vB) provide access to, and conduct tours of, the Property; and
(vi) provide certifications modify or amend any other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination material economic term of the Loan or any Updated InformationLoan.
(c) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements.
(d) If requested by Lender, Borrower shall use commercially reasonable efforts provide Lender with the following financial statements:
(A) Audited financial statements for the Marriott Marquis for 1996, 1997 and 1998 prepared in accordance with GAAP, (B) Audited financial statements for all Individual Properties other than the Marriott Marquis for 1998 prepared in accordance with GAAP and (C) unaudited financial statements for all Individual Properties other than the Marriott Marquis for 1996 and 1997.
(ii) Borrower certified balance sheet and statements of income and expense and cash flow of the Borrower prepared in accordance with GAAP for the current year through the most recent fiscal quarter ending more than forty-five (45) days prior to provide Lenderthe date of pricing of the Securitization.
(iii) Unaudited accrual based income statements for the Individual Properties (as if prepared in accordance with GAAP) for each quarter of 1999 through and including the most recent fiscal quarter ending more than forty-five (45) days prior to the date of pricing of the Securitization.
(iv) Upon five (5) Business Days after notice from Lender in connection with the Securitization of this Loan, promptly upon request, with any such additional financial statements, financialsuch that, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in date (each case, in connection with any a “Disclosure Document or any Exchange Act Filing or Date”) of each Disclosure Document, Borrower shall have provided Lender with all financial statements as may otherwise described above; provided that the Fiscal Year and interim periods for which such financial statements shall be reasonably requested by Lenderprovided shall be determined as of such Disclosure Document Date.
Appears in 2 contracts
Samples: Loan Agreement (Host Marriott Corp/), Loan Agreement (Host Marriott L P)
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan as a whole loan or sell or otherwise transfer any portion thereof or any interest therein to any Persontherein, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or any interest therein in one or more private or public single asset or pooled loan securitizations. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions transaction referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. .” Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities.”).
(b) If requested by Lender, at Lender’s sole cost and expense, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or marketplace, by the Rating Agencies or applicable by any Legal Requirements in connection with any Secondary Market TransactionsTransactions (including any Exchange Act Filings or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements), including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, Guarantor and Manager (including, without limitation, the information set forth on Schedule VI attached V hereto), (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Property and (C) provide updated appraisals, market studies, environmental audits, reviews and reports (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in required under clauses (A), (B) and (C) shall hereinafter be referred to collectively as the “Updated Information”), together, if customary, together with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, NRSROs and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance, and “true sale” or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor and any Affiliate of Borrower or Guarantor, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide provide, and cause to be provided, updated (as of the closing date of any Secondary Market Transaction) representations and warranties made in the Loan Documents and make, and cause to be made, such additional representations and warranties, in each case, consistent with fact, warranties as may be requested by Lender or the Rating Agencies may requireand consistent with the facts covered by such representations and warranties as they exist on the date thereof;
(iv) subject execute, and cause to Section 9.3be executed, execute such amendments, replacements or other modifications and amendments to Borrower’s Organizational Documents or the Loan Documents and Borrower’s organizational documents as may be reasonably requested by Lender or the Rating Agencies to effect the Secondary Market Transactions; provided, however, that Borrower shall not be required to amend, restate or otherwise modify any Loan Document if such amendment, restatement or other modification would (A) increase the initial weighted average interest rate or change the amortization of principal set forth herein or in the Note (except that the weighted average interest rate or the amortization of principal may require;subsequently change due to involuntary prepayments or if an Event of Default shall occur), (B) amend or otherwise modify any other material economic term of the Loan, (C) create or expand any obligations, duties or liabilities of Borrower or Guarantor, or (D) limit, condition or eliminate any terms, provisions or conditions which benefit Borrower or Guarantor; and
(v) attend management meetings, provide access to, to the Property and conduct tours of, of the Property; and
(vi) provide certifications provide, and cause to be provided, certificates or other evidence of reliance acceptable satisfactory to Lender and the Rating Agencies with respect to any information or third party reports and other information obtained in connection with the origination of the Loan or any Updated Information from Borrower, Guarantor, any Affiliate of Borrower or Guarantor, Manager and any accountants, appraisers, engineers, environmental assessment experts and other experts or third party providers of such information, reports or Updated Information.
(c) If, at the time one or more Disclosure Documents are being prepared for or in connection with a Securitization, Lender expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Property and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Property for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Property is the Significant Obligor and the Property (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any tenant of the Property if, in connection with a Securitization, Lender expects there to be, as of the cut-off date for such Securitization, a concentration with respect to such tenant or group of Affiliated tenants within all of the mortgage loans included or expected to be included in the Securitization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, on an ongoing basis, financial data or financial statements with respect to such tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (i) Exchange Act Filings in connection with or relating to the Securitization are required to be made under applicable Legal Requirements or (ii) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of any Borrower collectively, or the Property alone or the Property and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (i) Exchange Act Filings are required to be made under applicable Legal Requirements or (ii) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) Any financial data or financial statements provided pursuant to this Section 9.1 shall be furnished to Lender within the following time periods:
(i) with respect to information requested in connection with the preparation of Disclosure Documents for a Securitization, within ten (10) Business Days after notice from Lender; and
(ii) with respect to ongoing information required under Sections 9.1(d) and (e) above, (A) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (B) not later than seventy-five (75) days after the end of each Fiscal Year of Borrower.
(g) All financial data and financial statements provided by Borrower hereunder pursuant to Sections 9.1(c), (d), (e) and (f) hereof shall be prepared in accordance with GAAP, and shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and any and all other applicable Legal Requirements. All financial statements relating to a Fiscal Year shall be audited by independent accountants of Borrower acceptable to Lender in accordance with generally accepted auditing standards, Regulation S-X or Regulation S-K, as applicable, Regulation AB, and all other applicable Legal Requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and all other applicable Legal Requirements, and shall be further accompanied by a manually executed consent of the independent accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document, any Exchange Act Filing or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document, any Exchange Act Filing or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements, all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial data and financial statements (audited or unaudited) provided by Borrower shall be accompanied by an Officer’s Certificate which shall state that such financial data and financial statements meet the requirements set forth in the first sentence of this paragraph.
(h) In the event Lender determines, in connection with a Securitization, that financial statements and financial data required in order to comply with Regulation AB or any amendment, modification or replacement thereto or any other Legal Requirements are other than as provided herein, then notwithstanding the foregoing provisions of this Section 9.1, Lender may request, and Borrower shall promptly provide, such other financial statements and financial data as Lender determines to be necessary or appropriate for such compliance.
(i) Without limiting the generality of Section 9.1(h) above, if requested by Lender, Borrower shall promptly provide Lender with any financial statements or financial, statistical, operating or other information as Lender shall determine to be required pursuant to Regulation AB or any amendment, modification or replacement thereto or any other Legal Requirements in connection with any Disclosure Document, any Exchange Act Filing or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements or as shall otherwise be reasonably requested by Lender.
(j) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property or any aspect of the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (includingthe parties requesting such information and, but not limited to, investors or prospective investors in the Securitiesif applicable, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved NRSROs in or related to connection with any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) Transaction. Borrower also understands that the findings and conclusions of any third-party due diligence report obtained by Lender or other Securitization Indemnified Persons Parties may be made publicly available if required, and in the manner prescribed, by Section 15E(s)(4)(A) of the Exchange Act, any rules promulgated thereunder or any other applicable Legal Requirements.
(dk) If requested All reasonable, out-of-pocket costs and expenses incurred by LenderBorrower, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Guarantor and Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act this Section 9.1 (including, but not limited to, Regulation AB)without limitation, the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any fees and expenses of the foregoingRating Agencies) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise shall be reasonably requested paid by Lender.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital - Retail Centers of America, Inc.)
Sale of Mortgage and Securitization. (a) Subject to the provisions of Section 9.4 hereof, Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any PersonLoan, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If Subject to the provisions of Section 9.4 hereof, if requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or marketplace, by prospective investors, the Rating Agencies or Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including using commercially reasonable efforts to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantorand the Manager, including, without limitation, the information set forth on Schedule VI Exhibit B attached hereto, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, and (C) provide updated appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and the NRSROsLender, trustee in any Securitization, underwriters, NRSROs and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrowerthe Loan Documents, Guarantor and any Affiliate of Borrower or Guarantorand its Affiliates, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;; and
(iii) provide updated (updated, as of the closing date of any Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender or the Rating Agencies may require;
(v) provide access to, and conduct tours of, the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender expects that Borrower agrees alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, the Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may disclose equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Property and the Related Properties for the most recent fiscal year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender expects that the principal amount of the Loan together with any information relating Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to Borrower, its Affiliatesbe included in the Securitization, the Property or the Loan financial statements required under Item 1112(b)(2) of Regulation AB (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (includingwhich includes, but may not be limited to, investors a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Property for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or prospective investors if Lender determines that the Property is the Significant Obligor and the Property (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Property (to the extent available to Borrower and provided Borrower is not prohibited from disclosing same under the terms of the applicable Lease) if, in connection with a Securitization, Lender expects there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the SecuritiesSecuritization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the NRSROspreparation of the Disclosure Documents and on an ongoing basis, investment banking firmsfinancial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, accounting firmsas specified by Lender, law firms but only for so long as such entity or entities are a Significant Obligor and other third-party advisory (A) such financial data and/or financial statements is available to Borrower and service providers Borrower is not prohibited from disclosing such financial data and/or financial statements under the terms of the applicable Lease and (B) either (x) filings pursuant to the Exchange Act in connection with or relating to a Securitizationthe Securitization (an “Exchange Act Filing”) actually or potentially involved in or related are required to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the manner prescribed, by Securities under Regulation AB or applicable Legal Requirements.
(de) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Property alone or the Property and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) Any financial data or financial statements provided pursuant to this Section 9.1 shall be furnished to Lender within the following time periods:
(i) with respect to information requested in connection with the preparation of Disclosure Documents for a Securitization, within ten (10) Business Days after notice from Lender; and
(ii) with respect to ongoing information required under Section 9.1(d) and (e) above, (1) not later than forty-five (45) days after the end of each fiscal quarter of Borrower and (2) not later than seventy-five (75) days after the end of each fiscal year of Borrower.
(g) If requested by Lender, Borrower shall use commercially reasonable efforts provide Lender, promptly, and in any event within three (3) Business Days following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by the Lender.
(h) If requested by Lender, whether in connection with a Securitization or at any time thereafter during which the Loan and any Related Loans are included in a Securitization, the Borrower shall provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate a list of Tenants (including items required all affiliates of such Tenants) that in the aggregate (1) occupy 10% or items that would be required if more (but less than 20%) of the Securities issued in connection with a Securitization were offered publiclytotal floor area of the improvements or represent 10% or more (but less than 20%) to satisfy any of aggregate base rent, and all disclosure requirements (2) occupy 20% or more of the total floor area of the improvements or represent 20% or more of aggregate base.
(i) All financial statements provided by Borrower pursuant to this Section 9.1(c), (d), (e) or (f) shall be prepared in accordance with GAAP, and shall meet the Securities Act (includingrequirements of Regulation S-K or Regulation S-X, but not limited toas applicable, Regulation AB), the Exchange Act, any and other applicable securities laws Legal Requirements. All financial statements relating to a Fiscal Year shall be audited by Independent Accountants in accordance with generally accepted auditing standards, Regulation S-X or any amendmentRegulation S-K, modification or replacement to any of the foregoing) or required by any as applicable, Regulation AB, and all other applicable Legal Requirements, in each caseshall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and all other applicable Legal Requirements, and shall be further accompanied by a manually executed written consent of the Independent Accountants, in connection with form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document or and any Exchange Act Filing and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document and Exchange Act Filing (or as may comparable information is required to otherwise be reasonably requested available to holders of the Securities under Regulation AB or applicable Legal Requirements), all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial statements shall be certified by Lenderthe chief financial officer of Borrower, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this paragraph.
(j) Prior to a Securitization, Lender shall provide Borrower with prior written notice if Regulation S-X, Regulation S-K or Regulation AB is or are applicable.
Appears in 1 contract
Samples: Loan Agreement (Carter Validus Mission Critical REIT, Inc.)
Sale of Mortgage and Securitization. Subject to Section 9.4 hereof:
(a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any PersonLoan, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, Borrower shall (and shall cause Operating Lessee to) assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or marketplace, by prospective investors, the Rating Agencies or Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including using commercially reasonable efforts to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or GuarantorOperating Lessee and the Manager, including, without limitation, the information set forth on Schedule VI Exhibit B attached hereto, (B) provide updated budgets and and, if there are any Major Leases, rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, and (C) provide updated appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated 94 Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and the NRSROsLender, trustee in any Securitization, underwriters, NRSROs and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, the Loan Documents, Borrower, Guarantor Operating Lessee and any Affiliate of Borrower or Guarantortheir Affiliates, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;; and
(iv) subject (A) review any Disclosure Document or any interim draft thereof furnished by Lender to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender Borrower or the Rating Agencies may require;
(v) provide access to, and conduct tours of, the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies Operating Lessee with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(c) Borrower agrees contained therein that (i) was furnished to Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower or any Operating Lessee in connection with the preparation of its Affiliates such Disclosure Document or in connection with the underwriting or closing of the Loan, including financial statements of Borrower, Operating Lessee and Guarantor, operating statements and rent rolls with respect to Lender) to any Person (includingthe Property, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (iiB) the findings and conclusions within three (3) Business Days following Borrower’s or Operating Lessee’s receipt thereof, provide to Lender in writing any revisions to such Disclosure Document or interim draft thereof necessary or advisable to insure that such reviewed information does not contain any untrue statement of a material fact or omit to state any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirementsmaterial fact necessary to make statements contained therein not misleading.
(dc) If requested If, at the time a Disclosure Document is being prepared for a Securitization, Lender expects that Borrower and Operating Lessee alone or Borrower, Operating Lessee and one or more Affiliates of Borrower and Operating Lessee (including any guarantor or other Person that is directly or indirectly committed by Lendercontract or otherwise to make payments on all or a part of the Loan) collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall use commercially reasonable efforts furnish to provide Lender, promptly Lender upon request, with any request the following financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably requested by Lender.information:
Appears in 1 contract
Sale of Mortgage and Securitization. Subject to Section 9.4 hereof:
(a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any PersonLoan, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization and (iv) to otherwise sell, assign, participate or transfer the Loan, the Note, the Loan Documents and/or Lender’s rights, title, obligations and interests therein to any Person at any time in its sole and absolute discretion, in whole or in part, whether by operation of law (pursuant to a merger or other successor in interest) or otherwise. (Upon such assignment, all references to Lender and Co-Lender in this Agreement and in any Loan Document shall be deemed to refer to such assignee or successor in interest and such assignee or successor in interest shall thereafter stand in the place of Lender in all respects. The transactions referred to in clauses (i), (ii), (iii) and (iiiiv) are each hereinafter referred to as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities or similar instruments issued in connection with a Securitization Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If reasonably requested by Lender, Borrower shall use commercially reasonable efforts to assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or marketplace, by prospective investors, the Rating Agencies or and/or by applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts to:
(i) (A) provide updated reasonably requested, non-confidential financial and other information (other than projections) with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or GuarantorGuarantor and Manager, including, without limitation, the information set forth on Schedule VI Exhibit B attached hereto, in each case, to the extent reasonably available to Borrower or Manager, (B) provide updated budgets and rent rolls relating to the Property (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property), and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports such financial information and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively statements as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and the NRSROs, and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or are required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor and any Affiliate of Borrower or Guarantor, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated (as of the closing date of any Secondary Market Transaction) representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, as Lender or the Rating Agencies may require;
(iv) subject to this Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender or the Rating Agencies may require;
(v) provide access to, and conduct tours of, the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(c) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements.
(d) If requested by Lender, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB9.1(b), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably requested by Lender.
Appears in 1 contract
Samples: Loan Agreement (Alexanders Inc)
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions transaction referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”).
(b) If requested by Lender, Borrower shall use commercially reasonable, good faith efforts to assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, and the information set forth on Schedule VI attached heretoManager (if any), (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Property and (C) at Lender’s expense, provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, at Lender’s expense, which may be relied upon by Lender and Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance, and “true sale” or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor Property and any Affiliate of Borrower or Guarantorand Affiliates, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;
(iv) subject to Section 9.3, execute modifications and such amendments to the Loan Documents and Borrower’s organizational documents reasonably requested by Lender, including, without limitation, amending the Monthly Payment Date, the execution of one or more replacement loan agreements, as may be requested by Lender or the Rating Agencies to effect the Securitization and/or deliver one or more new component notes to replace the original note or modify the original note to reflect multiple components of the Loan (and such new notes or modified note shall have the same weighted average coupon and amortization of the original note, but such new notes or modified note may require;change the interest rate, Monthly Payment Date and amortization of the Loan after the occurrence of an Event of Default), and modify the Cash Management Agreement with respect to the newly created components such that the pricing and marketability of the Securities and the size of each class of Securities and the rating assigned to each such class by the Rating Agencies shall provide the most favorable rating levels and achieve the optimum rating levels for the Loan; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) change the interest rate, the stated maturity or the amortization of principal except as set forth above, (B) modify or amend any other material economic term of the Loan or (C) otherwise have a material adverse effect on any of Borrower’s rights and obligations under the Loan Documents; and
(v) provide access to, attend management meetings and conduct tours of, of the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(c) The Lender whose Note shall be the subject of the Securitization shall reimburse Borrower agrees that (i) Lender may disclose any information relating to Borrower, for all of its Affiliates, the Property or the Loan reasonable costs and expenses (including information provided by or on behalf Borrower’s legal fees in excess of Borrower or any an aggregate amount of its Affiliates to Lender$30,000) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements.
(d) If requested by Lender, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued incurred in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements its cooperation with such Lender pursuant to the Securities Act this Section 9.1, Section 9.3 and Section 11.29 (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement except that such Lender shall have no obligation to reimburse Borrower with respect to any of the foregoing) or foregoing which Borrower is otherwise required by any to perform and/or deliver at its cost under another provision of this Agreement); it being the agreement of the parties that no other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise Lender shall be reasonably requested by Lenderobligated to reimburse Borrower for such costs and expenses.
Appears in 1 contract
Samples: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Sale of Mortgage and Securitization. (a) Lender shall have the right right, at Lender’s cost and without the consent of Borrower, any Guarantor or any Affiliate of Borrower or any Guarantor, (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any PersonLoan, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, Borrower and Operating Lessee shall use commercially reasonable efforts to and shall cause Guarantors to use commercially reasonable efforts to assist Lender Lender, at Lender’s expense, in satisfying the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts toand shall in any event upon Lender’s request, at Lender’s expense:
(i) (A) provide updated financial and other customary information with respect to the PropertyProperties, the business operated at the PropertyProperties, Borrower, Guarantor, any Affiliate of Borrower or GuarantorOperating Lessee and each Manager, including, without limitation, the information set forth on Schedule VI Exhibit B attached hereto, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenanttenant) relating to the PropertyProperties, and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property Properties (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) cause counsel to provide legal opinions of counsel, which may be relied upon by Lender and the NRSROsLender, trustee in any Securitization, underwriters, NRSROs and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, or matters of Delaware and federal bankruptcy law relating to limited partners and/or limited liability companies, any other opinion customary with respect matters covered in the opinions delivered to loans comparable to the Loan in size and character in Secondary Market Transactions Lender at Closing or as required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the PropertyProperties, Borrowerthe Loan Documents, Guarantor and any Affiliate of Borrower or Guarantorand Operating Lessee and their respective Affiliates, which counsel and opinions shall be reasonably satisfactory to Lender and satisfactory to the Rating Agencies;; and
(iii) provide updated (as of the closing date of any Secondary Market Transaction) representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, as Lender or the Rating Agencies may require;
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s and Operating Lessee’s organizational documents as Lender requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the Rating Agencies may require;
(v) provide access to, and conduct tours of, initial weighted average of the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination interest rates of the Loan immediately after the effective date of such modification to exceed the weighted average interest rate of the Loan immediately prior to such modification, (B) cause the outstanding principal balance of the Loan immediately after the effective date of such modification to exceed the outstanding principal balance of the Loan in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Updated InformationGuarantor under the Loan Documents other than to a de minimis extent.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender expects that Borrower agrees alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall, at Lender’s expense, furnish to Lender upon reasonable request the following financial information:
(i) if Lender reasonably expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may disclose equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably expects that the principal amount of the Loan together with any information relating Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to Borrower, its Affiliatesbe included in the Securitization, the Property or financial statements in respect of the Loan Properties required under Item 1112(b)(2) of Regulation AB (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (includingwhich includes, but may not be limited to, investors a balance sheet with respect to the entity that Lender reasonably determines to be a Significant Obligor) for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X.
(d) Further, if reasonably requested by Lender, Borrower shall, promptly at Lender’s expense, furnish to Lender financial data or prospective investors financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any tenant of any Individual Property (if available and not subject to requirements of confidentiality under the terms of the applicable Lease) if, in connection with a Securitization, Lender expects there to be, as of the cutoff date for such Securitization, a concentration with respect to such tenant or group of Affiliated tenants within all of the mortgage loans included or expected to be included in the SecuritiesSecuritization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor. Borrower shall, at Lender’s expense, use commercially reasonable efforts to furnish to Lender, in connection with the NRSROspreparation of the Disclosure Documents and on an ongoing basis, investment banking firmsfinancial data and/or financial statements with respect to such tenants meeting (if available and not subject to requirements of confidentiality under the terms of the applicable Lease) the requirements of Item 1112(b)(1) or (2) of Regulation AB, accounting firmsas specified by Lender, law firms but only for so long as such entity or entities are a Significant Obligor and other third-party advisory and service providers either (x) filings pursuant to the Exchange Act in connection with or relating to a Securitizationthe Securitization (an “Exchange Act Filing”) actually or potentially involved in or related are required to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the manner prescribed, by Securities under Regulation AB or applicable Legal Requirements.
(de) If Lender reasonably determines in good faith that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall, at Lender’s expense, furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) Any financial data or financial statements provided pursuant to this Section 9.1 shall be furnished at Lender’s expense to Lender within the following time periods:
(i) with respect to information requested in connection with the preparation of Disclosure Documents for a Securitization, within ten (10) Business Days after notice from Lender; and
(ii) with respect to ongoing information required under Section 9.1(d) and (e) above, (1) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (2) not later than seventy-five (75) days after the end of each Fiscal Year of Borrower.
(g) If reasonably requested by Lender, Borrower shall, at Lender’s expense, provide Lender, promptly following Lender’s reasonable request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements identified by Lender and relating to a Securitization or as shall otherwise be reasonably requested by Lender or, in the case of a private securitization such statements or information as Lender shall reasonably determine to be necessary to be included.
(h) If requested by Lender, whether in connection with a Securitization or at any time thereafter during which the Loan and any Related Loans are included in a Securitization, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate a list of tenants (including items required all affiliates of such tenants) that in the aggregate (1) occupy 10% or more (but less than 20%) of the total floor area of the improvements or represent 10% or more (but less than 20%) of aggregate base rent, and (2) occupy 20% or more of the total floor area of the improvements or represent 20% or more of aggregate base rent.
(i) All financial statements provided by Borrower or Operating Lessee pursuant to this Section 9.1(c), (d), (e) or (f) shall be prepared in accordance with the Uniform System of Accounts and reconciled in accordance with GAAP (or items that would be required if otherwise in accordance with an Acceptable Accounting Method) and shall meet the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure applicable requirements pursuant to the Securities Act (includingof Regulation S-K or Regulation S-X, but not limited toas applicable, Regulation AB), the Exchange Act, any and other applicable securities laws or any amendment, modification or replacement Legal Requirements. All financial statements provided by Borrower pursuant to any of the foregoingclause (c) or required (d) relating to a Fiscal Year shall be audited by any Independent Accountants in accordance with GAAP, Regulation S-X or Regulation S-K, as applicable, Regulation AB, and all other applicable Legal Requirements, in each caseshall be accompanied by the manually executed report of the Independent Accountants thereon, which report shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and all other applicable Legal Requirements, and shall be further accompanied by a manually executed written consent of the Independent Accountants, in connection with form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document or and any Exchange Act Filing and to the use of the name of such Independent Accountants and the reference to such Independent Accountants as “experts” in any Disclosure Document and Exchange Act Filing (or as may comparable information is required to otherwise be available to holders of the Securities under Regulation AB or applicable Legal Requirements), all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial statements of the Borrower shall be certified by the chief financial officer of Borrower, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this paragraph.
(j) If reasonably requested by Lender, Borrower shall review any information regarding the Properties, tenants, Borrower, Operating Lessee and Guarantors which is contained in any Disclosure Document (including any interim drafts thereof and any amendments or supplements thereto) in order to confirm that to its knowledge, no such Disclosure Document contains any untrue statement of a material fact or omits any material fact necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading, and to the extent any such Disclosure Document contains any such material misstatements or omissions to correct any such material misstatements or omissions within five (5) Business Days following Borrower’s receipt thereof. Borrower shall not be liable hereunder for any material misstatement or omission contained in the Disclosure Document due to Lender’s failure to incorporate Borrower’s requested changes or modifications.
(k) For all purposes under this Agreement, if any Securities are offered pursuant to a “private” Securitization pursuant to an exemption under Rule 144A or Regulation D under the Securities Act, the provisions of Regulation AB, Regulation S-K, Regulation S-X and any other disclosure provisions of the Securities Act and/or Exchange Act, as applicable, shall be deemed to apply to such “private” Securitization as if such offering of Securities were being conducted pursuant to a registered public offering under the Securities Act.
Appears in 1 contract
Sale of Mortgage and Securitization. (a) Mezzanine Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Mezzanine Loan (including, without limitation, the Xxxxxxxx Mezzanine Loan, the Medford Mezzanine Loan and/or the Warrenton Mezzanine Loan) or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Mezzanine Loan to any Person(including, without limitation, the Xxxxxxxx Mezzanine Loan, the Medford Mezzanine Loan and/or the Warrenton Mezzanine Loan), or (iii) to securitize the Mezzanine Loan (including, without limitation, the Xxxxxxxx Mezzanine Loan, the Medford Mezzanine Loan and/or the Warrenton Mezzanine Loan) or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “Secondary Market Transaction” "SECONDARY MARKET TRANSACTIONS" and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”"SECURITIZATION". Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”"SECURITIES").
(b) If requested by Mezzanine Lender, Borrower Borrowers shall (and shall cause Owners to) assist Lender Mezzanine Lender, at Borrowers' reasonable expense, in satisfying the market standards to which Mezzanine Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts to:
(i) (A) provide updated financial and other information with respect to the PropertyProperties, the business operated at the PropertyProperties, each Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, each Owner and the information set forth on Schedule VI attached heretoManager, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the PropertyProperties, and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s 's and, if appropriate, Phase II’s's), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”"UPDATED INFORMATION"), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Mezzanine Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and Mezzanine Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance, and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the PropertyProperties, BorrowerOwners, Guarantor Borrowers and any Affiliate of Borrower or Guarantortheir Affiliates, which counsel and opinions shall be satisfactory to Mezzanine Lender and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Mezzanine Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;; and
(iv) subject to Section 9.3, execute modifications and amendments to the Mezzanine Loan Documents and Borrower’s Borrowers' organizational documents as Lender requested by Mezzanine Lender; PROVIDED, HOWEVER, that Borrowers shall not be required to modify or amend any Mezzanine Loan Document if such modification or amendment would (A) change the interest rate, the stated maturity or the Rating Agencies may require;
amortization of principal as set forth herein or in the Mezzanine Notes, or (vB) provide access to, and conduct tours of, the Property; and
(vi) provide certifications modify or amend any other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination material economic term of the Loan or any Updated InformationMezzanine Loan.
(c) If requested by Mezzanine Lender, each Borrower agrees shall (or shall cause each Owner to) provide Mezzanine Lender with the following financial statements (it being understood that Mezzanine Lender shall request (i) Lender may disclose full financial statements if it anticipates that the principal amount of the Mezzanine Loan at the time of a Securitization may, or if the principal amount of the Mezzanine Loan at any information relating to Borrowertime during which the Mezzanine Loan is included in a Securitization does, its Affiliates, equal or exceed 20% of the Property or the Loan (including information provided by or on behalf aggregate principal amount of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors all similar type loans included in the SecuritiesSecuritization, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) summaries of such financial statements if the findings and conclusions principal amount of the Mezzanine Loan at any thirdsuch time equals or exceeds 10% of such aggregate principal amount) (all references to Regulation S-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if requiredX in this Section 9.1(c) referring to Regulation S-X of the Securities Act):
(i) As of the Closing Date, a balance sheet with respect to the Properties for the two most recent Fiscal Years, meeting the requirements of SECTION 210.3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years, meeting the requirements of SECTION 210.3-02 of Regulation S-X, and, to the extent that such balance sheet is more than 135 days old as of the Closing Date, interim financial statements of the Properties meeting the requirements of SECTION 210.3-01 and 210.3-02 of Regulation S-X (all of such financial statements, collectively, the "STANDARD STATEMENTS"); PROVIDED, HOWEVER, that if the Properties would be deemed to constitute a business and not real estate under Regulation S-X that has been acquired by Owners from an unaffiliated third party, as to which the other conditions set forth in SECTION 210.3-05 of Regulation S-X for provision of financial statements in accordance with such Section have been met, at Mezzanine Lender's election in lieu of or in addition to the manner prescribedStandard Statements otherwise required by this SECTION 9.1(c)(i), Borrowers shall instead provide (or cause Owners to provide) the financial statements required by applicable Legal Requirementssuch SECTION 210.3-05 of Regulation S-X ("ACQUIRED PROPERTY STATEMENTS").
(dii) Not later than thirty (30) days after the end of each fiscal quarter following the Closing Date, a balance sheet of the applicable Individual Property as of the end of such fiscal quarter, meeting the requirements of Section 210.3-01 of Regulation S-X, and statements of income and statements of cash flows of such Individual Property for the period commencing on the day following the last day of the most recent Fiscal Year and ending on the date of such balance sheet and for the corresponding period of the most recent Fiscal Year, meeting the requirements of Section 210.3-02 of Regulation S-X (provided, that if for such corresponding period of the most recent Fiscal Year Acquired Property Statements were permitted to be provided hereunder pursuant to paragraph (i) above, such Borrower shall instead provide, or cause such Owner to provide, Acquired Property Statements for such corresponding period). If requested by Mezzanine Lender, such Borrower shall use commercially reasonable efforts also provide (or cause Owner to provide provide) "summarized financial information," as defined in Section 210.1-02(bb) of Regulation S-X, with respect to such quarterly financial statements.
(iii) Not later than sixty (60) days after the end of each Fiscal Year following the Closing Date, a balance sheet of the applicable Individual Property as of the end of such Fiscal Year, meeting the requirements of Section 210.3-01 of Regulation S-X, 380 and statements of income and statements of cash flows of the Property for such Fiscal Year, meeting the requirements of Section 210.3-02 of Regulation S-X. If requested by Mezzanine Lender, promptly upon requestsuch Borrower shall provide (or cause the applicable Owner to provide) summarized financial information with respect to such annual financial statements.
(iv) Upon ten (10) Business Days after notice from Mezzanine Lender in connection with the Securitization of this Mezzanine Loan, with any such additional financial statements, such that, as of the date (each a "DISCLOSURE DOCUMENT DATE") of each Disclosure Document, Borrowers shall have provided (or shall have caused Owners to provide) Mezzanine Lender with all financial statements as described in paragraph (i) above; provided that the Fiscal Year and interim periods for which such financial statements shall be provided shall be determined as of such Disclosure Document Date.
(v) In the event Mezzanine Lender determines, in connection with a Securitization, that the financial statements required in order to comply with Regulation S-X or any Legal Requirements are other than as provided herein, then notwithstanding the provisions of this Section, Mezzanine Lender may request, and Borrowers shall (or cause Owners to) promptly provide, such combination of Acquired Property Statements and/or Standard Statements as may be necessary for such compliance.
(vi) Any other or additional financial statements, or financial, statistical or operating information information, as shall be required pursuant to Regulation S-X or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, Requirements in connection with any Disclosure Document or any filing under or pursuant to the Exchange Act in connection with or relating to a Securitization (hereinafter an "EXCHANGE ACT FILING") or as shall otherwise be requested by Mezzanine Lender to meet disclosure, rating agency or marketing requirements. All financial statements provided by Borrowers or Owners pursuant to this SECTION 9.1(c) shall be prepared in accordance with GAAP, and shall meet the requirements of Regulation S-X and other applicable Legal Requirements. All financial statements relating to a Fiscal Year shall be audited by independent accountants in accordance with generally accepted auditing standards, Regulation S-X and all other applicable Legal Requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation S-X and all other applicable Legal Requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in form and substance acceptable to Mezzanine Lender, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such independent accountants and the reference to such independent accountants as "experts" in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial statements shall be certified by the chief financial officer of the applicable Borrower or Owner, as the case may otherwise be reasonably requested by Lenderbe, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this paragraph.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Horizon Group Properties Inc)
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions transaction referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”).
(b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or GuarantorFranchisor, including, without limitation, the information set forth on Schedule VI attached heretoSponsor and Manager, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s)) with respect to the Property and the Other Property, property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to single member limited liability companies, and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Property and Borrower and Borrower, Guarantor and any Affiliate of Borrower or Guarantor’s Affiliates, which counsel and opinions shall be satisfactory in form and substance to Lender and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;; and
(iv) subject to Section 9.3, execute modifications and such amendments to the Loan Documents and BorrowerBorrower or any SPC Party’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies may require;
or otherwise to effect the Securitization including, without limitation, bifurcation of the Loan into two or more components and/or separate notes and/or creating a senior/subordinate note structure (v) provide access toany of the foregoing, and conduct tours ofa “Loan Bifurcation”); provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would change the interest rate, the Property; and
(vi) provide certifications stated maturity or other evidence the amortization of reliance acceptable to Lender and principal set forth in the Rating Agencies with respect to third party reports and other information obtained Note, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the origination same initial weighted average coupon of the Loan or any Updated Informationoriginal Note.
(c) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements.
(d) If requested by Lender, Borrower shall use commercially reasonable efforts provide Lender with the following financial statements (it being understood that Lender shall request (i) full financial statements if it anticipates that the principal amount of the Loan at the time of Securitization may, or if the principal amount of the Loan at any time during which the Loan is included in a Securitization does, equals or exceeds 20% of the aggregate principal amount of all mortgage loans included in the Securitization and (ii) summaries of such financial statements if the principal amount of the Loan at any such time equals or exceeds 10% of such aggregate principal amount):
(i) As of the Closing Date, a balance sheet with respect to provide Lenderthe Property for the two most recent Fiscal Years, promptly upon requestmeeting the requirements of Section 210.3-01 of Regulation S-X of the Securities Act and statements of income and statements of cash flows with respect to the Property for the three most recent Fiscal Years, with any meeting the requirements of Section 210.3-02 of Regulation S-X, and, to the extent that such balance sheet is more than 135 days old as of the Closing Date, interim financial statements of the Property meeting the requirements of Section 210.3-01 and 210.3-02 of Regulation S-X (all of such financial statements, financialcollectively, statistical or operating information the “Standard Statements”); provided, however, if the Property that has been acquired by Borrower from an unaffiliated third party (an “Acquired Property”) and the other conditions set forth in Section 210.3-14 of Regulation S-X for the provision of financial statements in accordance with such Section have been met (other than if the Property is a hotel, nursing home or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items property that would be deemed to constitute a business and not real estate under Regulation S-X, provided that the other conditions set forth in Section 210.3-05 of Regulation S-X for provision of financial statements in accordance with such Section have been met (a “Business Property”)), in lieu of the Standard Statements otherwise required by this Section 9.1(c)(i), Borrower shall instead provide the financial statements required by such Section 210.3-14 of Regulation S-X; provided, further, however, with respect to any Business Property which is an Acquired Property, Borrower shall instead provide the financial statements required by Section 210.3-05 (such Section 210.3-14 or Section 210.3-05 financial statements referred to herein as (“Acquired Property Statements”).
(ii) Not later than 30 days after the end of each fiscal quarter following the Closing Date, a balance sheet of the Property as of the end of such fiscal quarter, meeting the requirements of Section 210.3-01 of Regulation S-X, and statements of income and statements of cash flows of the Property for the period commencing on the day following the last day of the most recent Fiscal Year and ending on the date of such balance sheet and for the corresponding period of the most recent Fiscal Year, meeting the requirements of Section 210.3-02 of Regulation S-X (provided, that if for such corresponding period of the Securities issued in connection with a Securitization most recent Fiscal Year, Acquired Property Statements were offered publicly) permitted to satisfy any and all disclosure requirements be provided hereunder pursuant to the Securities Act paragraph (includingi) above, but not limited to, Regulation ABBorrower shall instead provide Acquired Property Statements for such corresponding period), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably . If requested by Lender, Borrower shall also provide “summarized financial information,” as defined in Section 210.1-02(bb) of Regulation S-X, with respect to such quarterly financial statements.
(iii) Not later than 60 days after the end of each Fiscal Year following the Closing Date, a balance sheet of the Property as of the end of such Fiscal Year, meeting the requirements of Section 210.3-01 of Regulation S-X, and statements of income and statements of cash flows of the Property for such Fiscal Year, meeting the requirements of Section 210.3-02
Appears in 1 contract
Sale of Mortgage and Securitization. (a) Lender shall have the right right, at Lender’s cost and without the consent of Borrower, any Guarantor or any Affiliate of Borrower or any Guarantor, (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any PersonLoan, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, Borrower shall use commercially reasonable efforts to and shall cause Guarantors to use commercially reasonable efforts to assist Lender Lender, at Lender’s expense, in satisfying the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts toand shall in any event upon Lender’s request:
(i) (A) provide updated financial and other customary information with respect to the PropertyProperties, the business operated at the PropertyProperties, Borrower, Guarantor, any Affiliate of Borrower or Guarantorand each Manager, including, without limitation, the information set forth on Schedule VI Exhibit B attached hereto, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenanttenant) relating to the PropertyProperties, and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property Properties (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) cause counsel to provide legal opinions of counsel, which may be relied upon by Lender and the NRSROsLender, trustee in any Securitization, underwriters, NRSROs and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, or matters of Delaware and federal bankruptcy law relating to limited partners and/or limited liability companies, any other opinion customary with respect matters covered in the opinions delivered to loans comparable to the Loan in size and character in Secondary Market Transactions Lender at Closing or as required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the PropertyProperties, Borrowerthe Loan Documents, Guarantor and any Affiliate of Borrower or Guarantorand its Affiliates, which counsel and opinions shall be reasonably satisfactory to Lender and satisfactory to the Rating Agencies;; and
(iii) provide updated (as of the closing date of any Secondary Market Transaction) representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, as Lender or the Rating Agencies may require;
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the Rating Agencies may require;
initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (vB) provide access tocause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, and conduct tours of(C) require Borrower to make or remake any representations or warranties, the Property; and
(viD) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Updated InformationGuarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender expects that Borrower agrees alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall, at Lender’s expense, furnish to Lender upon reasonable request the following financial information:
(i) if Lender reasonably expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may disclose equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably expects that the principal amount of the Loan together with any information relating Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to Borrower, its Affiliatesbe included in the Securitization, the Property or financial statements in respect of the Loan Properties required under Item 1112(b)(2) of Regulation AB (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (includingwhich includes, but may not be limited to, investors a balance sheet with respect to the entity that Lender reasonably determines to be a Significant Obligor) for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X.
(d) Further, if reasonably requested by Lender, Borrower shall, promptly at Lender’s expense, furnish to Lender financial data or prospective investors financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any tenant of any Individual Property (if available and not subject to requirements of confidentiality under the terms of the applicable Lease) if, in connection with a Securitization, Lender expects there to be, as of the cutoff date for such Securitization, a concentration with respect to such tenant or group of Affiliated tenants within all of the mortgage loans included or expected to be included in the SecuritiesSecuritization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor. Borrower shall, at Lender’s expense, use commercially reasonable efforts to furnish to Lender, in connection with the NRSROspreparation of the Disclosure Documents and on an ongoing basis, investment banking firmsfinancial data and/or financial statements with respect to such tenants meeting (if available and not subject to requirements of confidentiality under the terms of the applicable Lease) the requirements of Item 1112(b)(1) or (2) of Regulation AB, accounting firmsas specified by Lender, law firms but only for so long as such entity or entities are a Significant Obligor and other third-party advisory and service providers either (x) filings pursuant to the Exchange Act in connection with or relating to a Securitizationthe Securitization (an “Exchange Act Filing”) actually or potentially involved in or related are required to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the manner prescribed, by Securities under Regulation AB or applicable Legal Requirements.
(de) If Lender reasonably determines in good faith that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall, at Lender’s expense, furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) Any financial data or financial statements provided pursuant to this Section 9.1 shall be furnished at Lender’s expense to Lender within the following time periods:
(i) with respect to information requested in connection with the preparation of Disclosure Documents for a Securitization, within ten (10) Business Days after notice from Lender; and
(ii) with respect to ongoing information required under Section 9.1(d) and (e) above, (1) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (2) not later than seventy-five (75) days after the end of each Fiscal Year of Borrower.
(g) If reasonably requested by Lender, Borrower shall, at Lender’s expense, provide Lender, promptly following Lender’s reasonable request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements identified by Lender and relating to a Securitization or as shall otherwise be reasonably requested by Lender or, in the case of a private securitization such statements or information as Lender shall reasonably determine to be necessary to be included.
(h) If requested by Lender, whether in connection with a Securitization or at any time thereafter during which the Loan and any Related Loans are included in a Securitization, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate a list of tenants (including items required all affiliates of such tenants) that in the aggregate (1) occupy 10% or items that would be required if more (but less than 20%) of the Securities issued in connection with a Securitization were offered publiclytotal floor area of the improvements or represent 10% or more (but less than 20%) to satisfy any of aggregate base rent, and all disclosure requirements (2) occupy 20% or more of the total floor area of the improvements or represent 20% or more of aggregate base rent.
(i) All financial statements provided by Borrower pursuant to this Section 9.1(c), (d), (e) or (f) shall be prepared in accordance with GAAP, and shall meet the Securities Act (includingapplicable requirements of Regulation S-K or Regulation S-X, but not limited toas applicable, Regulation AB), the Exchange Act, any and other applicable securities laws or any amendment, modification or replacement Legal Requirements. All financial statements provided by Borrower pursuant to any of the foregoingclause (c) or required (d) relating to a Fiscal Year shall be audited by any Independent Accountants in accordance with GAAP, Regulation S-X or Regulation S-K, as applicable, Regulation AB, and all other applicable Legal Requirements, in each caseshall be accompanied by the manually executed report of the Independent Accountants thereon, which report shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and all other applicable Legal Requirements, and shall be further accompanied by a manually executed written consent of the Independent Accountants, in connection with form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document or and any Exchange Act Filing and to the use of the name of such Independent Accountants and the reference to such Independent Accountants as “experts” in any Disclosure Document and Exchange Act Filing (or as may comparable information is required to otherwise be available to holders of the Securities under Regulation AB or applicable Legal Requirements), all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial statements of the Borrower shall be certified by the chief financial officer of Borrower, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this paragraph.
(j) If reasonably requested by Lender, Borrower shall review any information regarding the Properties, tenants, Borrower and Guarantors which is contained in any Disclosure Document (including any interim drafts thereof and any amendments or supplements thereto) in order to confirm that to its knowledge, no such Disclosure Document contains any untrue statement of a material fact or omits any material fact necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading, and to the extent any such Disclosure Document contains any such material misstatements or omissions to correct any such material misstatements or omissions within five (5) Business Days following Borrower’s receipt thereof. Borrower shall not be liable hereunder for any material misstatement or omission contained in the Disclosure Document due to Lender’s failure to incorporate Borrower’s requested changes or modifications.
(k) For all purposes under this Agreement, if any Securities are offered pursuant to a “private” Securitization pursuant to an exemption under Rule 144A or Regulation D under the Securities Act, the provisions of Regulation AB, Regulation S-K, Regulation S-X and any other disclosure provisions of the Securities Act and/or Exchange Act, as applicable, shall be deemed to apply to such “private” Securitization as if such offering of Securities were being conducted pursuant to a registered public offering under the Securities Act.
Appears in 1 contract
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions transaction referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”).
(b) If requested by Lender, Borrower shall use commercially reasonable, good faith efforts to assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, and the information set forth on Schedule VI attached heretoManager (if any), (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Property and (C) at Lender’s expense, provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, at Lender’s expense, which may be relied upon by Lender and Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance, and “true sale” or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor Property and any Affiliate of Borrower or Guarantorand Affiliates, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;
(iv) subject to Section 9.3, execute modifications and such amendments to the Loan Documents and Borrower’s organizational documents reasonably requested by Lender, including, without limitation, amending the Monthly Payment Date, the execution of one or more replacement loan agreements, as may be requested by Lender or the Rating Agencies to effect the Securitization and/or deliver one or more new component notes to replace the original note or modify the original note to reflect multiple components of the Loan (and such new notes or modified note shall have the same weighted average coupon and amortization of the original note, but such new notes or modified note may require;change the interest rate, Monthly Payment Date and amortization of the Loan after the occurrence of an Event of Default), and modify the Cash Management Agreement with respect to the newly created components such that the pricing and marketability of the Securities and the size of each class of Securities and the rating assigned to each such class by the Rating Agencies shall provide the most favorable rating levels and achieve the optimum rating levels for the Loan; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) change the interest rate, the stated maturity or the amortization of principal except as set forth above, (B) modify or amend any other material economic term of the Loan or (C) otherwise have a material adverse effect on any of Borrower’s rights and obligations under the Loan Documents; and
(v) provide access to, attend management meetings and conduct tours of, of the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(c) If, at the time one or more Disclosure Documents are being prepared for a Securitization, Lender expects that Borrower agrees alone or Borrower and one or more affiliates of Borrower collectively, or the Property alone or the Property and any other parcel(s) of real property, together with improvements thereon and personal property related thereto, that is “related”, within the meaning of the definition of Significant Obligor, to the Property (a “Related Property”) collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request (i) the selected financial data or, if applicable, net operating income, required under Item 1112(b)(1) of Regulation AB and meeting the requirements thereof, if Lender may disclose reasonably expects that the principal amount of the Loan, together with any information relating loans made to Borrower, its Affiliates, the an affiliate of Borrower or secured by a Related Property or that is included in a securitization with the Loan (including information provided by a “Related Loan”), as of the cut-off date for such securitization may, or on behalf if the principal amount of Borrower the Loan together with any Related Loans as of the cut-off date for such securitization does, equal or any exceed ten percent (10%) (but less than twenty percent (20%)) of its Affiliates the aggregate principal amount of all mortgage loans included or expected to Lender) to any Person (includingbe included, but not limited toas applicable, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually securitization or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings financial statements required under Item 1112(b)(2) of Regulation AB and conclusions meeting the requirements thereof, if Lender reasonably expects that the principal amount of the Loan together with any thirdRelated Loans as of the cut-party due diligence report obtained by Lender off date for such securitization may, or other Indemnified Persons may if the principal amount of the Loan together with any Related Loans as of the cut-off date for such securitization does, equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be made publicly available if requiredincluded, and as applicable, in the manner prescribedsecuritization. Such financial data or financial statements shall be furnished to Lender (A) within thirty (30) Business Days after notice from Lender in connection with the preparation of Disclosure Documents for the securitization, by applicable Legal Requirements.
(dB) If requested by Lendernot later than sixty (60) days after the end of each fiscal quarter of Borrower and (C) not later than ninety (90) days after the end of each fiscal year of Borrower; provided, however, that Borrower shall not be obligated to furnish financial data or financial statements pursuant to clauses (B) or (C) of this sentence with respect to any period for which a filing pursuant to the Securities Exchange Act of 1934 in connection with or relating to the securitization (an “Exchange Act Filing”) is not required. As used herein, “Regulation AB” shall mean Regulation AB under the Securities Act of 1933 and the Securities Exchange Act of 1934 (as amended). As used herein, “Disclosure Document” shall mean a prospectus, prospectus supplement, private placement memorandum, or similar offering memorandum or offering circular, in each case in preliminary or final form, used to offer securities in connection with a securitization. As used herein, “Significant Obligor” shall have the meaning set forth in Item 1101(k) of Regulation AB. Lender shall use commercially reasonable efforts to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and of all disclosure requirements pursuant to or part of the Securities Act (including, but not limited to, Loan so that Borrower may avoid compliance with Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably requested by Lender.
Appears in 1 contract
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions transaction referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “"Secondary Market Transaction” Transactions" and the transactions referred to in clause (iii) shall hereinafter be referred to as a “"Securitization”". Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “"Securities”").
(b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, and the information set forth on Schedule VI attached heretoManager, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s 's and, if appropriate, Phase II’s's), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “"Updated Information”"), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel reasonably acceptable to Lender and acceptable to the Rating Agencies;
(ii) provide opinions of counselcounsel (or assist Lender in connection with the preparation of opinions of counsel to the extent Lender's counsel has prepared or is preparing such opinions), which may be relied upon by Lender and Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance, and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor Property and any Affiliate of Borrower or Guarantorand Affiliates, which counsel and opinions shall be reasonably satisfactory to Lender and satisfactory to the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;require with such modifications as are necessary to make such representations and warranties true in all material respects; and
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s 's organizational documents as Lender reasonably requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) change the interest rate, the stated maturity or the Rating Agencies may require;
amortization of principal as set forth herein or in the Note, (vB) provide access to, and conduct tours of, the Property; and
(vi) provide certifications modify or amend any other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination material economic term of the Loan or any Updated Information.
(cC) Borrower agrees that (i) Lender may disclose any information relating to materially increase Borrower, its Affiliates, the Property or 's obligations and liabilities under the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal RequirementsDocuments.
(d) If requested by Lender, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably requested by Lender.
Appears in 1 contract
Samples: Loan Agreement (Kindercare Learning Centers Inc /De)
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions transaction referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. .” Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”).
(b) If requested by Lender, at not material cost to Borrower, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, and the information set forth on Schedule VI attached heretoManager, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, consolidation or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor Property and any Affiliate of Borrower or Guarantorand Affiliates, which counsel and opinions shall be reasonably satisfactory to Lender and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;
(iv) subject to Section 9.3, execute modifications and such amendments to the Loan Documents and Borrower’s organizational documents reasonably requested by Lender, including, without limitation, amending the Monthly Payment Date, the execution of one or more replacement loan agreements, as may be requested by Lender or the Rating Agencies to effect the Securitization and/or deliver one or more new component notes to replace the original note or modify the original note to reflect multiple components of the Loan (and such new notes or modified note shall have the same initial weighted average coupon of the original note, but such new notes or modified note may require;change the interest rate, Monthly Payment Date and amortization of the Loan), and modify the Cash Management Agreement with respect to the newly created components such that the pricing and marketability of the Securities and the size of each class of Securities and the rating assigned to each such class by the Rating Agencies shall provide the most favorable rating levels and achieve the optimum rating levels for the Loan; provided, however, any such amendments or agreements will not result in an economic change in the Loan terms and will not materially alter the payment terms set forth in this Agreement or the other Loan Documents or materially and adversely affect Borrower or impose additional material obligations or liabilities upon Borrower; and
(v) provide access to, attend management meetings and conduct tours of, of the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(c) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements.
(d) If requested by Lender, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably requested by Lender.
Appears in 1 contract
Sale of Mortgage and Securitization. (a) Lender shall have the right right, at Lender’s cost and without the consent of Borrower, any Guarantor or any Affiliate of Borrower or any Guarantor, (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any PersonLoan, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, Borrower and Operating Lessee shall use commercially reasonable efforts to and shall cause Guarantors to use commercially reasonable efforts to assist Lender Lender, at Lender’s expense, in satisfying the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts toand shall in any event upon Lender’s request, at Lender’s expense:
(i) (A) provide updated financial and other customary information with respect to the PropertyProperties, the business operated at the PropertyProperties, Borrower, Guarantor, any Affiliate of Borrower or GuarantorOperating Lessee and each Manager, including, without limitation, the information set forth on Schedule VI Exhibit B attached hereto, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenanttenant) relating to the PropertyProperties, and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property Properties (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) cause counsel to provide legal opinions of counsel, which may be relied upon by Lender and the NRSROsLender, trustee in any Securitization, underwriters, NRSROs and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, or matters of Delaware and federal bankruptcy law relating to limited partners and/or limited liability companies, any other opinion customary with respect matters covered in the opinions delivered to loans comparable to the Loan in size and character in Secondary Market Transactions Lender at Closing or as required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the PropertyProperties, Borrowerthe Loan Documents, Guarantor and any Affiliate of Borrower or Guarantorand Operating Lessee and their respective Affiliates, which counsel and opinions shall be reasonably satisfactory to Lender and satisfactory to the Rating Agencies;; and
(iii) provide updated (as of the closing date of any Secondary Market Transaction) representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, as Lender or the Rating Agencies may require;
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s and Operating Lessee’s organizational documents as Lender requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the Rating Agencies may require;
initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (vB) provide access tocause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, and conduct tours of(C) require Borrower to make or remake any representations or warranties, the Property; and
(viD) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Updated InformationGuarantor under the Loan Documents other than to a de minimis extent.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender expects that Borrower agrees alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall, at Lender’s expense, furnish to Lender upon reasonable request the following financial information:
(i) if Lender reasonably expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may disclose equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably expects that the principal amount of the Loan together with any information relating Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to Borrower, its Affiliatesbe included in the Securitization, the Property or financial statements in respect of the Loan Properties required under Item 1112(b)(2) of Regulation AB (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (includingwhich includes, but may not be limited to, investors a balance sheet with respect to the entity that Lender reasonably determines to be a Significant Obligor) for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X.
(d) Further, if reasonably requested by Lender, Borrower shall, promptly at Lender’s expense, furnish to Lender financial data or prospective investors financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any tenant of any Individual Property (if available and not subject to requirements of confidentiality under the terms of the applicable Lease) if, in connection with a Securitization, Lender expects there to be, as of the cutoff date for such Securitization, a concentration with respect to such tenant or group of Affiliated tenants within all of the mortgage loans included or expected to be included in the SecuritiesSecuritization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor. Borrower shall, at Lender’s expense, use commercially reasonable efforts to furnish to Lender, in connection with the NRSROspreparation of the Disclosure Documents and on an ongoing basis, investment banking firmsfinancial data and/or financial statements with respect to such tenants meeting (if available and not subject to requirements of confidentiality under the terms of the applicable Lease) the requirements of Item 1112(b)(1) or (2) of Regulation AB, accounting firmsas specified by Lender, law firms but only for so long as such entity or entities are a Significant Obligor and other third-party advisory and service providers either (x) filings pursuant to the Exchange Act in connection with or relating to a Securitizationthe Securitization (an “Exchange Act Filing”) actually or potentially involved in or related are required to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the manner prescribed, by Securities under Regulation AB or applicable Legal Requirements.
(de) If Lender reasonably determines in good faith that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall, at Lender’s expense, furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) Any financial data or financial statements provided pursuant to this Section 9.1 shall be furnished at Lender’s expense to Lender within the following time periods:
(i) with respect to information requested in connection with the preparation of Disclosure Documents for a Securitization, within ten (10) Business Days after notice from Lender; and
(ii) with respect to ongoing information required under Section 9.1(d) and (e) above, (1) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (2) not later than seventy-five (75) days after the end of each Fiscal Year of Borrower.
(g) If reasonably requested by Lender, Borrower shall, at Lender’s expense, provide Lender, promptly following Lender’s reasonable request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements identified by Lender and relating to a Securitization or as shall otherwise be reasonably requested by Lender or, in the case of a private securitization such statements or information as Lender shall reasonably determine to be necessary to be included.
(h) If requested by Lender, whether in connection with a Securitization or at any time thereafter during which the Loan and any Related Loans are included in a Securitization, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate a list of tenants (including items required all affiliates of such tenants) that in the aggregate (1) occupy 10% or more (but less than 20%) of the total floor area of the improvements or represent 10% or more (but less than 20%) of aggregate base rent, and (2) occupy 20% or more of the total floor area of the improvements or represent 20% or more of aggregate base rent.
(i) All financial statements provided by Borrower or Operating Lessee pursuant to this Section 9.1(c), (d), (e) or (f) shall be prepared in accordance with the Uniform System of Accounts and reconciled in accordance with GAAP (or items that would be required if otherwise in accordance with an Acceptable Accounting Method) and shall meet the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure applicable requirements pursuant to the Securities Act (includingof Regulation S-K or Regulation S-X, but not limited toas applicable, Regulation AB), the Exchange Act, any and other applicable securities laws or any amendment, modification or replacement Legal Requirements. All financial statements provided by Borrower pursuant to any of the foregoingclause (c) or required (d) relating to a Fiscal Year shall be audited by any Independent Accountants in accordance with GAAP, Regulation S-X or Regulation S-K, as applicable, Regulation AB, and all other applicable Legal Requirements, in each caseshall be accompanied by the manually executed report of the Independent Accountants thereon, which report shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and all other applicable Legal Requirements, and shall be further accompanied by a manually executed written consent of the Independent Accountants, in connection with form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document or and any Exchange Act Filing and to the use of the name of such Independent Accountants and the reference to such Independent Accountants as “experts” in any Disclosure Document and Exchange Act Filing (or as may comparable information is required to otherwise be available to holders of the Securities under Regulation AB or applicable Legal Requirements), all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial statements of the Borrower shall be certified by the chief financial officer of Borrower, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this paragraph.
(j) If reasonably requested by Lender, Borrower shall review any information regarding the Properties, tenants, Borrower, Operating Lessee and Guarantors which is contained in any Disclosure Document (including any interim drafts thereof and any amendments or supplements thereto) in order to confirm that to its knowledge, no such Disclosure Document contains any untrue statement of a material fact or omits any material fact necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading, and to the extent any such Disclosure Document contains any such material misstatements or omissions to correct any such material misstatements or omissions within five (5) Business Days following Borrower’s receipt thereof. Borrower shall not be liable hereunder for any material misstatement or omission contained in the Disclosure Document due to Lender’s failure to incorporate Borrower’s requested changes or modifications.
(k) For all purposes under this Agreement, if any Securities are offered pursuant to a “private” Securitization pursuant to an exemption under Rule 144A or Regulation D under the Securities Act, the provisions of Regulation AB, Regulation S-K, Regulation S-X and any other disclosure provisions of the Securities Act and/or Exchange Act, as applicable, shall be deemed to apply to such “private” Securitization as if such offering of Securities were being conducted pursuant to a registered public offering under the Securities Act.
Appears in 1 contract
Sale of Mortgage and Securitization. (a) Provided it does not have any impact on any economic and other material terms of the Loan or the Loan Documents, and the benefits and potential liability of Borrowers and Guarantor relative to the Loan and under the Loan Documents remain unaffected, and provided that it is at no cost to Borrowers, Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any PersonLoan, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”).
(b) If requested by Lender, Borrower and provided it is at no cost to Borrowers, Borrowers shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or marketplace, by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts to:
(i) (A) provide updated financial and other information with respect to the PropertyProperties, the business operated at the PropertyProperties, Borrower, Guarantor, any Affiliate of Borrower or GuarantorBorrowers and the Manager, including, without limitation, the information set forth on Schedule VI 6 attached heretohereto to the extent in any Borrower’s possession or obtainable by any Borrower without incurring any material cost or expense, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenanttenant) relating to the each Property, and (C) provide provide, at no cost to Borrowers, updated appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the each Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counselupdated, which may be relied upon by Lender and the NRSROs, and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor and any Affiliate of Borrower or Guarantor, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated (as of the closing date of any Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, as Lender or the Rating Agencies may require;Documents; and
(iviii) subject to Section 9.3, execute modifications and amendments to the Loan Documents and each Borrower’s organizational documents as Lender reasonably requested by Lender; provided, however, that Borrowers shall not be required to modify or amend any Loan Document if such modification or amendment would (A) change the interest rate, the stated maturity or the Rating Agencies may require;
amortization of principal as set forth herein or in the Note, or (vB) provide access tomodify or amend any other material economic term of the Loan, and conduct tours or (C) result in a material economic change or any other adverse change or materially increase the obligations or potential liability of, or reduce the Property; and
(vi) provide certifications rights and benefits of Borrowers or other evidence of reliance acceptable Guarantor relative to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Informationand under the Loan Documents.
(c) Borrower agrees that (i) Lender may disclose any information relating Any financial data or financial statements provided pursuant to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower or any of its Affiliates this Section 9.1 shall be furnished to Lender) , with respect to any Person (including, but not limited to, investors or prospective investors information requested in connection with the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to preparation of Disclosure Documents for a Securitization, within fifteen (15) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal RequirementsBusiness Days after notice from Lender.
(d) If requested by Lender, Borrower Borrowers shall use commercially reasonable efforts to provide Lender, promptly upon requestpromptly, and in any event within fifteen (15) Business Days following Lender’s reasonable request therefor, with any other or additional financial statements, or financial, statistical or operating information or other information information, as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would to be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (includingRegulation S-K or Regulation S-X, but not limited toas applicable, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) thereto or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing Requirements relating to a Securitization or as may shall otherwise be reasonably requested by the Lender.
(e) All financial statements provided by Borrowers pursuant to Section 9.1(c) shall be prepared in accordance with the method by which Borrowers prepare comparable financial statements pursuant to this Agreement, and shall meet the requirements other applicable Legal Requirements. All financial statements relating to a fiscal year shall meet all applicable Legal Requirements, all of which shall be provided at the same time as the related financial statements are required to be provided. All financial statements provided by Borrower pursuant to Section 9.1(c) shall accompanied by an Officer’s Certificate certifying that such items are true, correct, accurate, and complete and fairly present the financial condition and results of the operations of Borrowers and the Property in accordance with GAAP (subject to normal year-end adjustments) or such other method acceptable to Lender pursuant to the terms of this Agreement.
Appears in 1 contract
Samples: Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any PersonLoan, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”).
(b) If requested by Lender, Borrower shall assist Lender Lender, at Borrower’s reasonable expense not to exceed $5,000, in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements any Governmental Authority in connection with any Secondary Market Transactions, including using commercially reasonable efforts to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, and the information set forth on Schedule VI attached heretoManager, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, and (C) provide updated appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROsRating Agencies, and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor Property and any Affiliate of Borrower or Guarantorand its Affiliates, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;; and
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) change the interest rate, the stated maturity or the Rating Agencies may require;
amortization of principal as set forth herein or in the Note, or (vB) provide access to, and conduct tours of, the Property; and
(vi) provide certifications modify or amend any other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination material economic term of the Loan or any Updated InformationLoan.
(c) Upon request, Borrower agrees that (i) shall furnish to Lender may disclose from time to time such financial data and financial statements as Lender determines to be necessary, advisable or appropriate for complying with any information relating to Borrower, its Affiliates, the Property or the Loan Applicable Law (including information provided by or on behalf of Borrower those applicable to Lender or any of its Affiliates to Lender) to any Person Servicer (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms without limitation and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements.
(d) If requested by Lender, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited toextent applicable, Regulation AB)) within the timeframes necessary, the Exchange Act, any other applicable securities laws advisable or any amendment, modification or replacement appropriate in order to any of the foregoing) or required by any other Legal Requirements, in each case, in connection comply with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably requested by Lendersuch Applicable Law.
Appears in 1 contract
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions transaction referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “"Secondary Market Transaction” Transactions" and the transactions referred to in clause (iii) shall hereinafter be referred to as a “"Securitization”". Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “"Securities”").
(b) If requested by Lender, Borrower shall assist Lender Lender, at Lender's expense, in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, and the information set forth on Schedule VI attached heretoManager, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s 's and, if appropriate, Phase II’s's), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “"Updated Information”"), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance, and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor Property and any Affiliate of Borrower or Guarantorand Affiliates, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;; and
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s 's organizational documents as Lender reasonably requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) change the interest rate, the stated maturity or the Rating Agencies may require;
amortization of principal as set forth herein or in the Note, (vB) provide access to, and conduct tours of, the Property; and
(vi) provide certifications modify or amend any other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination material economic term of the Loan or any Updated Information.(C) otherwise be adverse to Borrower. March 31, 2003
(c) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements.
(d) If requested by Lender, Borrower shall use commercially reasonable efforts provide Lender with the following financial statements (it being understood that Lender shall request (i) full financial statements if it anticipates that the principal amount of the Loan at the time of Securitization may, or if the principal amount of the Loan at any time during which the Loan is included in a Securitization does, equals or exceeds 20% of the aggregate principal amount of all mortgage loans included in the Securitization and (ii) summaries of such financial statements if the principal amount of the Loan at any such time equals or exceeds 10% of such aggregate principal amount):
(i) As of the Closing Date, a balance sheet with respect to provide Lenderthe Property for the two most recent Fiscal Years, promptly upon requestmeeting the requirements of Section 210.3-01 of Regulation S-X of the Securities Act and statements of income and statements of cash flows with respect to the Property for the three most recent Fiscal Years, with any meeting the requirements of Section 210.3-02 of Regulation S-X, and, to the extent that such balance sheet is more than 135 days old as of the Closing Date, interim financial statements of the Property meeting the requirements of Section 210.3-01 and 210.3-02 of Regulation S-X (all of such financial statements, financialcollectively, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items the "Standard Statements"); provided, however, that if the Property would be deemed to constitute a business and not real estate under Regulation S-X that has been acquired by Borrower from an unaffiliated third party, as to which the other conditions set forth in Section 210.3-05 of Regulation S-X for provision of financial statements in accordance with such Section have been met, at Lender's election in lieu of or in addition to the Standard Statements otherwise required by this Section 9.1(c)(i), Borrower shall instead provide the financial statements required by such Section 210.3-05 of Regulation S-X ("Acquired Property Statements").
(ii) Not later than 30 days after the end of each fiscal quarter following the Closing Date, a balance sheet of the Property as of the end of such fiscal quarter, meeting the requirements of Section 210.3-01 of Regulation S-X, and statements of income and statements of cash flows of the Property for the period commencing on the day following the last day of the most recent Fiscal Year and ending on the date of such balance sheet and for the corresponding period of the most recent Fiscal Year, meeting the requirements of Section 210.3-02 of Regulation S-X (provided, that if for such corresponding period of the Securities issued in connection with a Securitization most recent Fiscal Year Acquired Property Statements were offered publicly) permitted to satisfy any and all disclosure requirements be provided hereunder pursuant to the Securities Act paragraph (includingi) above, but not limited to, Regulation ABBorrower shall instead provide Acquired Property Statements for such corresponding period), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably . If requested by Lender, Borrower shall also provide "summarized financial information," as defined in Section 210.1-02(bb) of Regulation S-X, with respect to such quarterly financial statements.
(iii) Not later than 60 days after the end of each Fiscal Year following the Closing Date, a balance sheet of the Property as of the end of such Fiscal Year, meeting the requirements of Section 210.3-01 of Regulation S-X, and statements of income and statements of cash flows of the Property for such Fiscal Year, meeting the requirements of Section 210.3-02
Appears in 1 contract
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public single single-asset or pooled pooled-loan securitizations. (The transactions referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions transaction referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. .” Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”).
(b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, and the information set forth on Schedule VI attached heretoManager, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, together with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance, and “true sale” or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor Property and any Affiliate of Borrower or Guarantorand Affiliates, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may requirerequire (provided, however, that Borrower shall only be required to provide such updated or additional representations and warranties to the extent the same are then true and correct and to the extent not then true and correct shall provide an explanation satisfactory to Lender with respect thereto);
(iv) subject to Section 9.3, execute modifications and such amendments to the Loan Documents and Borrower’s organizational documents reasonably requested by Lender, including, without limitation, the modification of all operative dates (including, without limitation, the Monthly Payment Date, the Interest Period, the Determination Date and the Maturity Date) under the Loan Documents by up to ten (10) days (such modification a “Re-Dating”), the execution of one or more replacement loan agreements, as may be requested by Lender or the Rating Agencies to effect the Securitization and/or deliver one or more new component notes to replace the original note or modify the original note to reflect multiple components of the Loan (and such new notes or modified note shall initially have the same weighted average coupon of the original note, but such new notes or modified note may require;
change the interest rate, Monthly Payment Date and amortization of the Loan), such that the pricing and marketability of the Securities and the size of each class of Securities and the rating assigned to each such class by the Rating Agencies shall provide the most favorable rating levels and achieve the optimum rating levels for the Loan; provided, however, any such amendments or agreements will not materially alter the payment terms set forth in this Agreement or the other Loan Documents or materially and adversely affect Borrower or reduce in a material manner Borrower’s rights under this Agreement and the other Loan Documents, or impose additional material obligations or liabilities upon Borrower or materially reduce the rights of Borrower. In connection with a Securitization, Borrower shall cooperate with Lender to implement any Re-Dating (v) provide access toincluding obtaining a modification of any Interest Rate Cap Agreement), and conduct tours of, the Property; and
(vi) provide certifications or other evidence to satisfy all requirements of reliance acceptable to Lender and each of the Rating Agencies with respect to third party reports the Loan and other information obtained the Securitization as required by this Section 9.1. If Borrower shall fail to cooperate with Lender as set forth in connection this Section 9.1 within ten (10) Business Days of each initial request by Lender, Lender is hereby appointed as Borrower’s attorney in fact to execute any and all documents necessary to accomplish the Re-Dating, including, without limitation, obtaining a modification of any Interest Rate Cap Agreement. For purposes of this subsection (v), (y) the phrase “initial request” shall mean the initial request made by Lender with respect to a particular issue with reasonable specificity and shall include all related issues arising directly or logically therefrom such that issues arising directly or logically therefrom shall not serve to extend the origination ten (10) Business Day deadline imposed pursuant to this subsection (v) and (z) the ten (10) Business Day deadline referred to in this subsection (v) shall be extended with respect to any “initial request” to the extent reasonably necessary to enable Borrower to comply with such request. Notwithstanding the foregoing, in the event that the Securitization is a participation or syndication of the Loan, then for so long as UBS retains an ownership interest in the Loan, which interest is not immaterial, Borrower shall deal solely with UBS and the Servicer of UBS for all purposes under this Agreement and the other Loan or Documents, provided that Borrower shall cooperate with UBS with respect to reasonable requests made to UBS by any Updated Informationof the other interest holders in the Loan.
(v) attend management meetings and conduct tours of the Property.
(c) If, at the time one or more Disclosure Documents are being prepared for a securitization, Lender reasonably expects that Borrower agrees alone or Borrower and one or more affiliates of Borrower collectively, or the Property alone or the Property and any other parcel(s) of real property, together with improvements thereon and personal property related thereto, that is “related”, within the meaning of the definition of Significant Obligor, to the Property (a “Related Property”) collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request (i) the selected financial data or, if applicable, net operating income, required under Item 1112(b)(1) of Regulation AB and meeting the requirements thereof, if Lender may disclose expects that the principal amount of the Loan, together with any information relating loans made to Borrower, its Affiliates, the an affiliate of Borrower or secured by a Related Property or that is included in a securitization with the Loan (including information provided by a “Related Loan”), as of the cut-off date for such securitization may, or on behalf if the principal amount of Borrower the Loan together with any Related Loans as of the cut-off date for such securitization and at any time during which the Loan and any Related Loans are included in a securitization does, equal or any exceed ten percent (10%) (but less than twenty percent (20%)) of its Affiliates the aggregate principal amount of all mortgage loans included or expected to Lender) to any Person (includingbe included, but not limited toas applicable, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually securitization or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings financial statements required under Item 1112(b)(2) of Regulation AB and conclusions meeting the requirements thereof, if Lender expects that the principal amount of the Loan together with any thirdRelated Loans as of the cut-party due diligence report obtained by Lender off date for such securitization may, or other Indemnified Persons may if the principal amount of the Loan together with any Related Loans as of the cut-off date for such securitization and at any time during which the Loan and any Related Loans are included in a securitization does, equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be made publicly available if requiredincluded, and as applicable, in the manner prescribedsecuritization. Such financial data or financial statements shall be furnished to Lender (A) within ten (10) Business Days after notice from Lender in connection with the preparation of Disclosure Documents for the securitization, by applicable Legal Requirements.
(dB) If requested by Lendernot later than thirty (30) days after the end of each fiscal quarter of Borrower and (C) not later than seventy-five (75) days after the end of each fiscal year of Borrower; provided, however, that Borrower shall use commercially reasonable efforts not be obligated to provide Lender, promptly upon request, furnish financial data or financial statements pursuant to clauses (B) or (C) of this sentence with respect to any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if period for which a filing pursuant to the Securities issued Exchange Act of 1934 in connection with or relating to the securitization (an “Exchange Act Filing”) is not required. As used herein, “Regulation AB” shall mean Regulation AB under the Securities Act of 1933 and the Securities Exchange Act of 1934 (as amended). As used herein, “Disclosure Document” shall mean a prospectus, prospectus supplement, private placement memorandum, or similar offering memorandum or offering circular, in each case in preliminary or final form, used to offer securities in connection with a Securitization were offered publiclysecuritization. As used herein, “Significant Obligor” shall have the meaning set forth in Item 1101(k) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, of Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably requested by Lender.
Appears in 1 contract
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any PersonLoan, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “"Secondary Market Transaction” " and the transactions referred to in clause (iii) shall hereinafter be referred to as a “"Securitization”". Any certificates, notes or other securities issued in connection with a Securitization Secondary Market Transaction are hereinafter referred to as “"Securities”"). At Lender's election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or marketplace, by prospective investors, the Rating Agencies or Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including using commercially reasonable efforts to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantorand the Manager, including, without limitation, the information set forth on Schedule VI Exhibit B attached hereto, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, and (C) provide updated appraisals, market studies, environmental reviews and reports (Phase I’s 's and, if appropriate, Phase II’s's), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “"Updated Information”Information "), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied .relied upon by Lender and the NRSROsLender, trustee in any Securitization, underwriters, NRSROs and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrowerthe Loan Documents, Guarantor and any Affiliate of Borrower or Guarantorand its Affiliates, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;; and
(iv) subject (A) review any Disclosure Document or any interim draft thereof furnished by Lender to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender or the Rating Agencies may require;
(v) provide access to, and conduct tours of, the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies Borrower with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(c) Borrower agrees contained therein that (i) was furnished to Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower in connection with the preparation of such Disclosure Document or any in connection with the underwriting or closing of its Affiliates the Loan, including financial statements of Borrower and Guarantor, operating statements and rent rolls with respect to Lender) to any Person (includingthe Property, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (iiB) the findings and conclusions within five (5) Business Days following Borrower's receipt thereof, provide to Lender in writing any revisions to such Disclosure Document or interim draft thereof necessary or advisable to insure that such reviewed information does not contain any untrue statement of a material fact or omit to state any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirementsmaterial fact necessary to make statements contained therein not misleading.
(dc) If requested If, at the time a Disclosure Document is being prepared for a Securitization, Lender expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by Lendercontract or otherwise to make payments on all or a part of the Loan) collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall use commercially reasonable efforts furnish to provide Lender, promptly Lender upon request, request the following financial information:
(i) if Lender expects that the principal amount of the Loan together with any financial statementsRelated Loans, financialas of the cut-off date for such Securitization, statistical may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating information or other information income for the Property and the Related Properties for the most recent Fiscal Year and interim period as Lender shall reasonably determine is necessary or appropriate required under Item 1112(b)(1) of Regulation AB (including items required (or items that would be required or, if the Securities issued Loan is not treated as a non-recourse loan under Instruction 3 for Item l lOl(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in connection with a Securitization were offered publiclyItem 301 of Regulation S-K and Item 1112(b)(l) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, of Regulation AB), or
(ii) if Lender expects that the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any principal amount of the foregoingLoan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1l12(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Property for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Property is the Significant Obligor and the Property (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably requested by LenderRule 3-14 of Regulation S-X)).
Appears in 1 contract
Samples: Loan Agreement (Bluerock Residential Growth REIT, Inc.)
Sale of Mortgage and Securitization. Subject to Section 9.4 hereof:
(a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any PersonLoan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or interest therein in one or more private or public single asset or pooled loan securitizations. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, Borrower shall reasonably cooperate with and assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or marketplace, by prospective investors, the Rating Agencies or Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including using commercially reasonable efforts to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or GuarantorGuarantor(s) and the Manager, including, without limitation, the information set forth on Schedule VI Exhibit B attached hereto, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, and (C) provide updated appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel reasonably acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and the NRSROsLender, trustee in any Securitization, underwriters, NRSROs and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrowerthe Loan Documents, Guarantor and any Affiliate of Borrower or Guarantorand its Affiliates, which counsel and opinions shall be reasonably satisfactory to Lender and satisfactory to the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;; and
(iv) subject (A) review any Disclosure Document or any interim draft thereof furnished by Lender to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender or the Rating Agencies may require;
(v) provide access to, and conduct tours of, the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies Borrower with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(c) Borrower agrees contained therein that (i) was furnished to Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower in connection with the preparation of such Disclosure Document or in connection with the underwriting or closing of the Loan, including financial statements of Borrower and Guarantor, operating statements and rent rolls with respect to the Property, and (B) within three (3) Business Days following Borrower’s receipt thereof, provide to Lender in writing any revisions to such Disclosure Document or interim draft thereof necessary or advisable to insure that such reviewed information does not contain any untrue statement of its a material fact or omit to state any material fact necessary to make statements contained therein not misleading.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to Lendermake payments on all or a part of the Loan) collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender expects that the principal amount of the Loan together with any Person Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (including10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Property and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, investors a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Property for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or prospective investors if Lender determines that the Property is the Significant Obligor and the Property (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in the SecuritiesRule 3-14 of Regulation S-X have been met, the NRSROsfinancial statements required by Rule 3-14 of Regulation S-X)).
(d) [intentionally omitted].
(e) If Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, investment banking firmsor the Property alone or the Property and Related Properties collectively, accounting firmsare a Significant Obligor, law firms then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and other third-party advisory and service providers either (x) filings pursuant to the Exchange Act in connection with or relating to a Securitizationthe Securitization (an “Exchange Act Filing”) actually or potentially involved in or related are required to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the manner prescribed, by Securities under Regulation AB or applicable Legal Requirements.
(df) Any financial data or financial statements provided pursuant to this Section 9.1 shall be furnished to Lender within the following time periods:
(i) with respect to information requested in connection with the preparation of Disclosure Documents for a Securitization, within ten (10) Business Days after notice from Lender; and
(ii) with respect to ongoing information required under Section 9.1(d) and (e) above, (1) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (2) not later than seventy-five (75) days after the end of each Fiscal Year of Borrower.
(g) If requested by Lender, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon requestpromptly, and in any event within three (3) Business Days following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information or other information information, as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would to be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (includingRegulation S-K or Regulation S-X, but not limited toas applicable, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) thereto or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing Requirements relating to a Securitization or as may shall otherwise be reasonably requested by the Lender.
(h) If requested by Lender, whether in connection with a Securitization or at any time thereafter during which the Loan and any Related Loans are included in a Securitization, but not more than three times within any twelve (12)-month period, Borrower shall provide, within five (5) days after Lender’s request, a list of Tenants (including all affiliates of such Tenants) that in the aggregate (1) occupy 10% or more (but less than 20%) of the total floor area of the improvements or represent 10% or more (but less than 20%) of aggregate base rent, and (2) occupy 20% or more of the total floor area of the improvements or represent 20% or more of aggregate base rent.
(i) All financial statements provided by Borrower pursuant to this Section 9.1(c), (d), (e) or (f) shall be prepared in accordance with an Acceptable Accounting Method, and shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and other applicable Legal Requirements. All financial statements relating to a Fiscal Year shall be audited by Independent Accountants in accordance with generally accepted auditing standards, Regulation S-X or Regulation S-K, as applicable, Regulation AB, and all other applicable Legal Requirements, shall be accompanied by the manually executed report of the Independent Accountants thereon, which report shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and all other applicable Legal Requirements, and shall be further accompanied by a manually executed written consent of the Independent Accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such Independent Accountants and the reference to such Independent Accountants as “experts” in any Disclosure Document and Exchange Act Filing (or comparable information is required to otherwise be available to holders of the Securities under Regulation AB or applicable Legal Requirements), all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial statements shall be certified by the chief financial officer or other authorized representative (whose function is similar to that of a chief financial officer) of Borrower, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this paragraph.
(j) In connection with any Secondary Market Transaction, Lender shall have the right, and Borrower hereby authorizes Lender, to disclose any and all information in Lender’s possession regarding Borrower, Guarantor, any Manager, the Property and/or the Loan in any Disclosure Document, in any promotional or marketing materials that are prepared by or on behalf of Lender in connection with such Secondary Market Transaction or in connection with any oral or written presentation made by or on behalf of Lender, including without limitation, to any actual or potential investors and any Rating Agencies and other NRSROs.
(k) Lender shall provide Borrower with prior written notice if Regulation S-K, Regulation S-X or Regulation AB is applicable pursuant to a Securitization.
Appears in 1 contract
Samples: Loan Agreement (Clipper Realty Inc.)
Sale of Mortgage and Securitization. Subject to Section 9.3 hereof:
(a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any PersonLoan, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization Secondary Market Transaction are hereinafter referred to as “Securities”).) At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or marketplace, by prospective investors, the Rating Agencies or Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including using commercially reasonable efforts to:
(i) to (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, and the information set forth on Schedule VI attached heretoManager, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, and (C) provide updated appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and the NRSROs, and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor and any Affiliate of Borrower or Guarantor, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated (as of the closing date of any Secondary Market Transaction) representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, as Lender or the Rating Agencies may require;
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender or the Rating Agencies may require;
(v) provide access to, and conduct tours of, the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(c) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements.
(d) If requested by Lender, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably requested by Lender.
Appears in 1 contract
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions transaction referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. .” Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities.”).
(b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the PropertyIndividual Properties, the business operated at the PropertyIndividual Properties, Borrower and, to the extent reasonably available to Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, the information set forth on Schedule VI attached heretoeach Manager, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Individual Properties and (C) at Lender’s expense provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property Individual Properties (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance, and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor Individual Properties and any Affiliate of Borrower or Guarantorand Affiliates, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, warranties substantially similar to the representations and warranties contained in each case, consistent with fact, the Loan Documents as Lender or the Rating Agencies may require;; and
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents reasonably requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) change the interest rate, the stated maturity or the amortization of principal as Lender set forth herein or in the Note, (B) modify or amend any other material economic term of the Loan, or (C) materially decrease the rights or materially increase the obligations of the Borrower. Any reports, statements or other information required to be delivered under this Section 9.1 shall be delivered in paper form or transmitted electronically in PDF or other similar format or Borrower may deliver such reports, statements and other information (A) on a diskette, or (B) in electronic form and prepared using Microsoft Word for Windows or WordPerfect for Windows files (which files may be prepared using a spreadsheet program and saved as word processing files), provided, that, delivery of such reports, statements and other information in such formats shall be subject to Borrower’s satisfaction of the reporting and delivery obligations and requirements of the Servicer. Notwithstanding the foregoing, Borrower shall be required to deliver original opinions, agreements, amendments, certificates of the Borrower or its Affiliates, and title insurance policies or endorsements, and Borrower shall be required to deliver originals of any other agreements, documents, certificates and reports if such originals are reasonably requested by Lender, the Servicer or the Rating Agencies may require;
(v) provide access to, and conduct tours of, the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(c) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements.
(d) If requested by Lender, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items otherwise required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably requested by LenderLoan Documents.
Appears in 1 contract
Samples: Loan Agreement (Wells Real Estate Investment Trust Inc)
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge syndicate or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any PersonLoan, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, Borrower shall use reasonable efforts to assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or marketplace, by prospective investors, the Rating Agencies or Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including using commercially reasonable efforts to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantorand the Manager, including, without limitation, the information set forth on Schedule VI Exhibit B attached hereto, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, and (C) provide updated appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel reasonably acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and the NRSROsLender, trustee in any Securitization, underwriters, NRSROs and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, consolidation or any other opinion customary with respect to loans comparable to the Loan in size and character customarily provided by borrowers in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrowerthe Loan Documents, Guarantor and any Affiliate of Borrower or Guarantorand its Affiliates, which counsel and opinions shall be reasonably satisfactory to Lender and satisfactory to the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as the Rating Agencies may require; and
(iv) execute such amendments to the Loan Documents as may be reasonably requested by Lender or the Rating Agencies may require;
in an effort to achieve the required rating or to effect the Securitization (iv) subject including, without limitation, modifying the Monthly Payment Date to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents a date other than as Lender or the Rating Agencies may require;
(v) provide access tooriginally set forth in such Notes, and conduct tours of, restructuring the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies collateral package with respect to third party reports and other information obtained in connection with the origination Worldwide Plaza Amenities, the pledge of the Membership Interests, and the Pledged Loans), provided, that, without limiting Borrower’s, Guarantors’ and their Affiliates’ obligations under this Article IX, nothing contained in this Section 9.1(b)(iv) shall increase (other than to a de minimis extent) Borrower’s or Guarantors’ obligations, or decrease (other than to a de minimis extent) Borrower’s or Guarantors’ rights, under the Loan or any Updated InformationDocuments.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender expects that Borrower agrees alone or Borrower and one or more Affiliates of Borrower (including any Guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may disclose equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Property and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender expects that the principal amount of the Loan together with any information relating Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to Borrower, its Affiliatesbe included in the Securitization, the Property or the Loan financial statements required under Item 1112(b)(2) of Regulation AB (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (includingwhich includes, but may not be limited to, investors a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Property for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or prospective investors if Lender determines that the Property is the Significant Obligor and the Property (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, to the extent such information is available to Borrower without unreasonable effort or expense and Borrower is not restricted from disclosing such information pursuant to the terms of a confidentiality agreement or similar arrangement with an applicable Tenant, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Property if, in connection with a Securitization, Lender in good faith expects there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the SecuritiesSecuritization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall, to the NRSROsextent such information is available to Borrower without unreasonable effort or expense and Borrower is not restricted from disclosing such information pursuant to the terms of a confidentiality agreement or similar arrangement with an applicable Tenant, investment banking firmsfurnish to Lender, accounting firmsin connection with the preparation of the Disclosure Documents and on an ongoing basis, law firms financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and other third-party advisory and service providers either (x) filings pursuant to the Exchange Act in connection with or relating to a Securitizationthe Securitization (an “Exchange Act Filing”) actually or potentially involved in or related are required to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the manner prescribed, by Securities under Regulation AB or applicable Legal Requirements.
(de) If Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Property alone or the Property and Related Properties collectively, are a Significant Obligor in Lender’s proposed Securitization, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) Any financial data or financial statements provided pursuant to this Section 9.1 shall be furnished to Lender within the following time periods:
(i) with respect to information requested in connection with the preparation of Disclosure Documents for a Securitization, within ten (10) Business Days after notice from Lender; and
(ii) with respect to ongoing information required under Section 9.1(d) and (e) above, (1) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (2) not later than seventy-five (75) days after the end of each Fiscal Year of Borrower.
(g) If requested by Lender, Borrower shall use commercially reasonable efforts provide Lender, promptly, and in any event within three (3) Business Days following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by the Lender.
(h) If requested by Lender, whether in connection with a Securitization or at any time thereafter during which the Loan and any Related Loans are included in a Securitization, Borrower shall provide Lender, promptly upon request, with any financial statementsbut not more frequently than once per calendar year, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate a list of Tenants (including items required all affiliates of such Tenants) that in the aggregate (1) occupy 10% or items that would be required if more (but less than 20%) of the Securities issued in connection with a Securitization were offered publiclytotal floor area of the improvements or represent 10% or more (but less than 20%) to satisfy any of aggregate base rent, and all disclosure requirements (2) occupy 20% or more of the total floor area of the improvements or represent 20% or more of aggregate base.
(i) All financial statements provided by Borrower pursuant to Section 9.1(c), (d) or (e) shall meet the Securities Act (includingrequirements of Regulation S-K or Regulation S-X, but not limited toas applicable, Regulation AB), the Exchange Act, any and other applicable securities laws Legal Requirements. All financial statements relating to a Fiscal Year shall be audited by Independent Accountants in accordance with generally accepted auditing standards, Regulation S-X or any amendmentRegulation S-K, modification or replacement to any of the foregoing) or required by any as applicable, Regulation AB, and all other applicable Legal Requirements, in each caseshall be accompanied by the manually executed report of the Independent Accountants thereon, which report shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and all other applicable Legal Requirements, and shall be further accompanied by a manually executed written consent of the Independent Accountants, in connection with form and substance reasonably acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document or and any Exchange Act Filing and to the use of the name of such Independent Accountants and the reference to such Independent Accountants as “experts” in any Disclosure Document and Exchange Act Filing (or as may comparable information is required to otherwise be reasonably requested available to holders of the Securities under Regulation AB or applicable Legal Requirements), all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial statements prepared by LenderBorrower shall be certified by the chief financial officer of Borrower, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this paragraph. Notwithstanding anything contained herein to the contrary, it is understood and agreed that Lender may only disclose the name, experience, names and titles of principals of, assets managed, financial covenants under the Loan Documents and other information regarding Guarantors that are customarily provided in a Disclosure Document; provided that in no event shall any Disclosure Document include financial data, social security numbers or driver’s license information of any principals of any Guarantor.
Appears in 1 contract
Samples: Loan Agreement (New York REIT, Inc.)
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan as a whole loan or to syndicate any direct or indirect interests in the Loan or sell or otherwise transfer any portion thereof or any interest therein to any Persontherein, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or any interest therein in one or more private or public single asset or pooled loan securitizations. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions transaction referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. .” Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities.”).
(b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace marketplace, by actual and/or prospective investors, the Rating Agencies, actual and/or prospective counterparties in any Secondary Market Transaction or by the Rating Agencies or applicable any Legal Requirements in connection with any Secondary Market TransactionsTransactions (including any Exchange Act Filings or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements), including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide or cause Mortgage Borrower to provide updated financial and other information with respect to the Property, the business operated at each Property, the PropertyCollateral, Mortgage Borrower, Borrower, Guarantor, any Affiliate of Mortgage Borrower, Borrower or Guarantor, Guarantor and Manager (including, without limitation, the information set forth on Schedule VI attached III hereto), (B) provide updated budgets and rent rolls Rent Rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Property and (C) provide updated appraisals, market studies, environmental audits, reviews and reports (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in required under clauses (A), (B) and (C) shall hereinafter be referred to collectively as the “Updated Information”), together, if customary, together with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers or opinions of counsel acceptable to Lender and Lender, the Rating Agencies, and any actual or prospective counterparty or investor in a Secondary Market Transaction;
(ii) provide or cause Mortgage Borrower to provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, NRSROs and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance, and “true sale” or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction or any actual or prospective counterparty or investor in a Secondary Market Transaction with respect to the Property, the Collateral, Mortgage Borrower, Guarantor and any Affiliate of Mortgage Borrower, Borrower or Guarantor, which counsel and opinions shall be satisfactory to Lender and Lender, the Rating Agencies, and any actual or prospective counterparty or investor in a Secondary Market Transaction;
(iii) provide provide, and cause to be provided, updated (as of the closing date of any Secondary Market Transaction) representations and warranties made in the Loan Documents and make, and cause to be made, such additional representations and warrantieswarranties as may be requested by Lender, the Rating Agencies, or any actual or prospective counterparty or investor in each case, a Secondary Market Transaction and consistent with fact, the facts covered by such representations and warranties as Lender or they exist on the Rating Agencies may requiredate thereof;
(iv) subject execute, and cause to Section 9.3be executed, execute such amendments, replacements or other modifications and amendments to Mortgage Borrower’s or Borrower’s Organizational Documents or the Loan Documents and Borrower’s organizational documents the Mortgage Loan Documents as Lender may be requested by Lender, the Rating Agencies, or any actual or prospective counterparty or investor in a Secondary Market Transaction to effect the Secondary Market Transactions; provided, however, that neither Borrower nor Mortgage Borrower shall be required to amend, restate or otherwise modify any Loan Document or Mortgage Loan Document if such amendment, restatement or other modification would (A) increase the initial weighted average interest rate or change the amortization of principal set forth herein or in the Note (except that the weighted average interest rate or the Rating Agencies amortization of principal may require;subsequently change due to involuntary prepayments or if an Event of Default shall occur) or (B) amend or otherwise modify any other material economic term of the Loan; and
(v) attend management meetings, provide access to, to the Property and conduct tours of, of the Property; and
(vi) provide certifications provide, and cause to be provided, certificates or other evidence of reliance acceptable satisfactory to Lender and Lender, the Rating Agencies Agencies, and any actual or prospective counterparty or investor in a Secondary Market Transaction with respect to any information or third party reports and other information obtained in connection with the origination of the Loan or any Updated Information from Mortgage Borrower, Borrower, Guarantor, any Affiliate of Mortgage Borrower, Borrower or Guarantor, Manager and any accountants, appraisers, engineers, environmental assessment experts and other experts or third party providers of such information, reports or Updated Information.
(c) If, at the time one or more Disclosure Documents are being prepared for or in connection with a Securitization or other applicable Secondary Market Transaction, Lender expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall and shall cause Mortgage Borrower to furnish to Lender upon request the following financial information:
(i) if Lender expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization or other applicable Secondary Market Transaction, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Property and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization or other applicable Secondary Market Transaction, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Property for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Property is the Significant Obligor and the Property (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall and shall cause Mortgage Borrower to, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any tenant of the Property if, in connection with a Securitization or other applicable Secondary Market Transaction, Lender expects there to be, as of the cut-off date for such Securitization or other applicable Secondary Market Transaction, a concentration with respect to such tenant or group of Affiliated tenants within all of the mortgage loans included or expected to be included in the Securitization or other applicable Secondary Market Transaction such that such tenant or group of Affiliated tenants would constitute a Significant Obligor. Borrower shall and shall cause Mortgage Borrower to furnish to Lender, on an ongoing basis, financial data or financial statements with respect to such tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (i) Exchange Act Filings in connection with or relating to the Securitization or other applicable Secondary Market Transaction are required to be made under applicable Legal Requirements or (ii) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of any Borrower collectively, or the Property alone or the Property and Related Properties collectively, are a Significant Obligor, then Borrower shall and shall cause Mortgage Borrower to furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (i) Exchange Act Filings are required to be made under applicable Legal Requirements or (ii) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) Any financial data or financial statements provided pursuant to this Section 9.1 shall be furnished to Lender within the following time periods:
(i) with respect to information requested in connection with the preparation of Disclosure Documents for a Securitization or other applicable Secondary Market Transaction, within ten (10) Business Days after notice from Lender; and
(ii) with respect to ongoing information required under Sections 9.1(d) and (e) above, (A) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (B) not later than seventy-five (75) days after the end of each Fiscal Year of Borrower.
(g) All financial data and financial statements provided by Borrower or Mortgage Borrower hereunder pursuant to Sections 9.1(c), (d), (e) and (f) hereof shall be prepared in accordance with GAAP, and shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and any and all other applicable Legal Requirements. All financial statements relating to a Fiscal Year shall be audited by independent accountants of Borrower or Mortgage Borrower acceptable to Lender in accordance with generally accepted auditing standards, Regulation S-X or Regulation S-K, as applicable, Regulation AB, and all other applicable Legal Requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and all other applicable Legal Requirements, and shall be further accompanied by a manually executed consent of the independent accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document, any Exchange Act Filing or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document, any Exchange Act Filing or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements, all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial data and financial statements (audited or unaudited) provided by Borrower shall be accompanied by an Officer’s Certificate which shall state that such financial data and financial statements meet the requirements set forth in the first sentence of this paragraph.
(h) In the event Lender determines, in connection with a Securitization or other applicable Secondary Market Transaction, that financial statements and financial data required in order to comply with Regulation AB or any amendment, modification or replacement thereto or any other Legal Requirements are other than as provided herein, then notwithstanding the foregoing provisions of this Section 9.1, Lender may request, and Borrower shall and shall cause Mortgage Borrower to promptly provide, such other financial statements and financial data as Lender determines to be necessary or appropriate for such compliance.
(i) Without limiting the generality of Section 9.1(h) above, if requested by Lender, Borrower shall and shall cause Mortgage Borrower to promptly provide Lender with any financial statements or financial, statistical, operating or other information as Lender shall reasonably determine to be required pursuant to Regulation AB or any amendment, modification or replacement thereto or any other Legal Requirements in connection with any Disclosure Document, any Exchange Act Filing or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements or as shall otherwise be reasonably requested by Lender.
(j) Borrower agrees that (i) Lender may disclose any information relating to Borrower, Mortgage Borrower, its Affiliates, the Property Property, the Collateral or any aspect of the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (includingthe parties requesting such information and, but not limited to, investors or prospective investors in the Securitiesif applicable, the NRSROs, investment banking firms, accounting firms, law firms Rating Agencies or any actual or prospective counterparty or investor and other third-party advisory and service providers relating to a Securitization) actually or potentially involved their respective representatives in or related to connection with any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) Transaction. Borrower also understands that the findings and conclusions of any third-party due diligence report obtained by Lender or other Securitization Indemnified Persons Parties may be made publicly available if required, and in the manner prescribed, by Section 15E(s)(4)(A) of the Exchange Act, any rules promulgated thereunder or any other applicable Legal Requirements.
(dk) If requested by Lender, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information agrees that each participant or other information as Lender actual or prospective counterparty or investor in a Secondary Market Transaction shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant entitled to the Securities Act (including, but not limited to, Regulation AB), benefits of Section 2.8 to the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or same extent as may otherwise be reasonably requested by if such participant was a Lender.
(l) With respect to ongoing financial data or financial statements required under Sections 9.1(d) and (e) above, Borrower’s obligation to furnish such information shall be subject to the condition that compliance with such obligation shall be at no material additional cost to Borrower.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Plymouth Industrial REIT Inc.)
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each above shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”). Lender shall not make any such assignment to any of the parties set forth on Schedule IX without Borrower’s prior written consent, which consent may be withheld or granted in Borrower’s sole discretion; provided, however, that such limitation on assignment shall not apply (a) to any Person that purchases or holds any Securities pursuant to a Securitization and such prohibition does not apply to retention of a primary servicer, master servicer or special servicer as permitted hereunder, or (b) during the continuance of an Event of Default, Additionally, in connection with any Secondary Market Transaction subject to the foregoing restriction, Lender shall be entitled to rely in good faith on a representation from any transferee that such transferee is not a “prohibited transferee” without any need for independent investigation.
(b) If reasonably requested by Lender, Borrower shall (at no cost or expense to Borrower, except to the extent expressly set forth in Section 9.4) assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts at Borrower’s cost and expense, including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, the information set forth on Schedule VI attached heretoGuarantor and Manager, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Property and (C) provide cooperate with Lender in obtaining updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property Property, subject to Borrower’s reasonable and customary safety requirements and the rights of Tenants under Leases (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers or opinions of counsel auditors reasonably acceptable to Lender and acceptable to the Rating Agencies;
(ii) use commercially reasonable efforts to provide customary updates or customary modifications to the opinions of counselcounsel provided by Borrower at Closing, which as may be relied upon reasonably requested by Lender and in order to effect the NRSROsSecuritization, and their respective counsel, agents and representatives, as including updates or modifications requested by or for the benefit of the Rating Agencies (it being agreed that in no event shall Borrower be required to bankruptcy non-consolidation, or any other provide an opinion customary of counsel with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor and any Affiliate of Borrower or Guarantor, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies“10b-5” matters);
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;; and
(iv) subject to Section 9.3, execute modifications and such amendments to the Loan Documents and Borrower’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies may require;
in order to effect the Securitization including, without limitation, bifurcation of the Loan into two or more components and/or separate notes and/or creating a senior/subordinate note structure (vany of the foregoing, a “Loan Bifurcation”); provided, however, that (I) provide access toBorrower shall not be required to modify or amend any Loan Document if such modification or amendment would (a) change the principal amount, and conduct tours ofinterest rate, the Property; and
(vi) provide certifications stated maturity or other evidence the amortization of reliance acceptable to Lender and principal set forth in the Rating Agencies with respect to third party reports and other information obtained Note, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the origination same initial weighted average coupon and same aggregate principal amount as the original Note, or (b) modify any other economic or non-economic term of the Loan in a manner that is adverse (except to a de minimis extent) to Borrower, Guarantor or any Updated InformationAffiliate thereof or that would result in any operational changes that are materially burdensome to Borrower or the Property, and (II) in no event shall Lender be entitled to convert any portion of the Loan into a mezzanine loan.
(c) If, at the time one or more Disclosure Documents are being prepared for a Securitization, Lender reasonably expects that Borrower agrees that alone or Borrower and one or more Affiliates of Borrower collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor for purposes of such Securitization, Borrower shall furnish (or cause to be furnished) to Lender upon reasonable request (i) the selected financial data or, if applicable, net operating income, described in Item 1112(b)(1) of Regulation AB, if Lender may disclose reasonably expects that the principal amount of the Loan together with any information relating to BorrowerRelated Loans as of the cut-off date for such Securitization may, its Affiliates, or if the Property or principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan (including information provided by or on behalf portion of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors the Loan included in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a such Securitization) actually and any Related Loans are included in a Securitization does, equal or potentially involved exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included, as applicable, in such Securitization or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings financial statements described in Item 1112(b)(2) of Regulation AB, if Lender expects that the principal amount of the Loan (or portion of the Loan included in such Securitization) together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and conclusions at any time during which the Loan (or portion of the Loan included in such Securitization) and any Related Loans are included in a Securitization does, equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included, as applicable, in the Securitization. Such financial data or financial statements shall be furnished to Lender (A) within ten (10) Business Days after notice from Lender in connection with the preparation of Disclosure Documents for the Securitization, (B) not later than forty-one (41) days after the end of each fiscal quarter of Borrower and (C) not later than eighty-five (85) days after the end of each fiscal year of Borrower (the “Exchange Act Financials”); provided, however, that Borrower shall not be obligated to furnish financial data or financial statements pursuant to clauses (B) or (C) of this sentence with respect to any period for which an Exchange Act Filing is not required. Any reasonable incremental costs and expenses incurred by Borrower in connection with the delivery to Lender of any third-party due diligence report obtained financial data or financial statements within the time periods set forth in clauses (B) and (C) of this Section rather than the time periods provided in Section 4.9 and/or in the form required pursuant to this Section rather than in the form required in Section 4.9, shall be paid by Lender or other Indemnified Persons may be made publicly available if requiredLender. If requested by Lender, and to the extent not prohibited by any applicable lease, other agreement or order, Borrower shall furnish to Lender financial data and/or financial statements for any tenant of the Property if, in connection with a Securitization, Lender expects there to be, with respect to such tenant or group of affiliated tenants, a concentration within all of the mortgage loans included or expected to be included, as applicable, in the manner prescribed, by applicable Legal RequirementsSecuritization such that such tenant or group of affiliated tenants would constitute a Significant Obligor.
(d) If requested by Lender, Borrower shall use commercially reasonable efforts to provide Lender, as promptly upon requestas reasonably practicable following Lender’s request therefor, and in any event, within the time periods that would be required to comply with Regulation AB or other Legal Requirements relating to a Securitization (but no earlier than three (3) Business Days following notice from Lender) with any other or additional financial statements, or financial, statistical or operating information or other information information, as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) thereto or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing Requirements relating to a Securitization or as may shall otherwise be reasonably requested by the Lender.
(e) All financial statements provided by Borrower hereunder pursuant to this Section 9.1 shall be prepared in accordance with GAAP, and shall meet the requirements of Regulation AB and other applicable Legal Requirements. All annual financial statements referred to in Section 9.1(c) above shall be audited by Independent Accountants of Borrower in accordance with Regulation AB and all other applicable Legal Requirements, shall be accompanied by the manually executed report of the Independent Accountants thereon, which report shall meet the requirements of Regulation AB and all applicable Legal Requirements and shall be accompanied by a manually executed written consent of the Independent Accountants, in form and substance reasonably acceptable to Lender and such Independent Accountants, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such Independent Accountants and the reference to such Independent Accountants as “experts” in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the same time as the related financial statements are required to be provided. All financial data and financial statements (audited or unaudited) provided by Borrower under Section 9.1(c) shall be accompanied by an Officer’s Certificate stating that such financial statements meet the requirements set forth in the first sentence of this Section 9.1(d).
Appears in 1 contract
Sale of Mortgage and Securitization. (ai) Lender shall have the right (i) to sell, assign, pledge or otherwise transfer the Loan or any portion thereof or interest therein to any Person, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public single asset or pooled loan securitizations. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”).
(bj) If reasonably requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts toTransaction as follows:
(i) (A) provide (x) updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, ARCNYC REIT, any Affiliate of Manager, and any Person owned (directly or indirectly) by, Controlled by or under common Control with, ARCNYC REIT which also owns an interest (direct or indirect) in Borrower or Guarantor(each a “Specified Affiliate”), including, without limitation, the information set forth on Schedule VI attached hereto, (y) information (other than financial information) with respect to any Manager which is not an Affiliated Manager and any Affiliate of Borrower which is not a Specified Affiliate, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customarycustomary and reasonably available, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers or opinions of counsel reasonably acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and the NRSROs, and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor and any Affiliate of Borrower or Guarantor, which counsel and opinions shall be reasonably satisfactory to Lender and satisfactory to the Rating AgenciesAgencies in their sole discretion;
(iii) provide updated (as of the closing date of any Secondary Market Transaction) representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with factDocuments, as Lender or the Rating Agencies same may requirebe modified, as necessary, to reflect matters in existence at the time such update is provided);
(iv) subject to the limitations in clauses (1) through (5) of Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender or the Rating Agencies may require;
(v) provide access to, and conduct tours of, the Property; and
(vi) provide certifications or other evidence of reliance reasonably acceptable to Lender and acceptable to the Rating Agencies with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(ck) Borrower agrees that (i) Lender may disclose any information relating to the Property, the business operating at the Property, Borrower, its AffiliatesGuarantor, the Property any Affiliate of Borrower or Guarantor, Manager or the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information in connection with a Secondary Market Transaction and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements. Except as otherwise provided by applicable law, Lender shall utilize all non public information obtained pursuant to the requirements of this Agreement which has been identified as confidential or proprietary by the Borrower in accordance with its customary procedure for handling confidential information of this nature and in accordance with safe and sound banking practices but in any event may make disclosure: (a) to any of their respective Affiliates (provided they shall be notified of the confidential nature of the information); (b) to any lender or financial institution making any portion of the Loan (provided they shall be notified of the confidential nature of the information); (c) as reasonably requested by any assignee, participant, investor in the Loan or other transferee in connection with any contemplated Secondary Market Transaction (provided they shall be notified of the confidential nature of the information); (d) as required or requested by any Governmental Authority or representative thereof or pursuant to legal process or in connection with any legal proceedings; (e) to Lender’s independent auditors and other professional advisors (provided they shall be notified of the confidential nature of the information); (f) if an Event of Default exists, to any other Person, to the extent disclosure to such Person is required and/or necessary for Lender to exercise and/or enforce its rights and remedies hereunder or under any of the other Loan Documents; and (g) to the extent such information (x) becomes publicly available other than as a result of a breach of this Section 9.1(c) or (y) becomes available to Lender on a nonconfidential basis from a source other than Borrower or any Affiliate thereof.
(dl) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender, upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Property and the Related Properties for the most recent fiscal year and interim period if required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which may include, if and as required by Regulation AB, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Property for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Property is the Significant Obligor and the Property (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other Legal Requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(m) Further, if requested by Lender pursuant to a requirement under Regulation AB, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Property if, in connection with a Securitization, Lender expects there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and, if required by Regulation AB, on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender (and to the extent the same is required under Regulation AB), but only for so long as such entity or entities are a Significant Obligor and either (i) Exchange Act Filings are required to be made under applicable Legal Requirements or (ii) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(n) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Property alone or the Property and Related Properties collectively, are a Significant Obligor, then, to the extent the same is required under Regulation AB, Borrower shall furnish to Lender, upon Lender’s request, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender (and to the extent the same is required under Regulation AB), but only for so long as such entity or entities are a Significant Obligor and either (i) Exchange Act Filings are required to be made under applicable Legal Requirements or (ii) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(o) Any financial data or financial statements provided pursuant to this Section 9.1 shall be furnished to Lender within the following time periods (or such later date as required to comply with Regulation AB):
(i) with respect to information requested in connection with the preparation of Disclosure Documents for a Securitization, within ten (10) Business Days after notice from Lender; and
(ii) with respect to ongoing information required under Section 9.1(e) and (f) above, (1) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (2) not later than seventy-five (75) days after the end of each Fiscal Year of Borrower, in each case if and when requested by Lender.
(p) If requested by Lender, Borrower shall use commercially reasonable efforts provide Lender, promptly, and in any event within three (3) Business Days following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
(q) If requested by Lender, whether in connection with a Securitization or at any time thereafter during which the Loan and any Related Loans are included in a Securitization, Borrower shall provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate a list of Tenants (including items required all affiliates of such Tenants) that in the aggregate (1) occupy ten percent (10%) or items that would be required if more (but less than twenty percent (20%)) of the Securities issued in connection with a Securitization were offered publiclytotal floor area of the improvements or represent ten percent (10%) to satisfy any or more (but less than twenty percent (20%)) of aggregate base rent, and all disclosure requirements (2) occupy twenty percent (20%) or more of the total floor area of the improvements or represent twenty percent (20%) or more of aggregate base rent.
(r) All financial statements provided by Borrower pursuant to Section 9.1(d), (e), (f) or (g) shall be prepared in accordance with GAAP (if and to the Securities Act (including, but not limited to, extent required by Regulation AB), and shall meet the Exchange Actrequirements of Regulation S-K or Regulation S-X, any as applicable, Regulation AB, and other applicable securities laws Legal Requirements. All financial statements relating to a Fiscal Year shall, or any amendmentnecessary in order to satisfy the requirements of such regulations, modification be audited by independent accountants of Borrower reasonably acceptable to Lender in accordance with generally accepted auditing standards, Regulation S-X or replacement to any of the foregoing) or required by any Regulation S-K, as applicable, Regulation AB, and all other applicable Legal Requirements, in each caseshall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and all other applicable Legal Requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in connection with form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document or and any Exchange Act Filing and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document and Exchange Act Filing (or as may comparable information is required to otherwise be reasonably requested available to holders of the Securities under Regulation AB or applicable Legal Requirements), all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial statements shall be certified by Lenderthe chief financial officer of Borrower, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this paragraph.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital New York City REIT, Inc.)
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public single single-asset or pooled pooled-loan securitizations. (The transactions referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions transaction referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. .” Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”).
(b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, and the information set forth on Schedule VI attached heretoManager, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, together with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance, and “true sale” or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor Property and any Affiliate of Borrower or Guarantorand Affiliates, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may requirerequire (provided, however, that Borrower shall only be required to provide such updated or additional representations and warranties to the extent the same are then true and correct and to the extent not then true and correct shall provide an explanation satisfactory to Lender with respect thereto);
(iv) subject to Section 9.3, execute modifications and such amendments to the Loan Documents and Borrower’s organizational documents reasonably requested by Lender, including, without limitation, the modification of all operative dates (including, without limitation, the Monthly Payment Date, the Interest Period, the Determination Date and the Maturity Date) under the Loan Documents by up to ten (10) days (such modification a “Re-Dating”), the execution of one or more replacement loan agreements, as may be requested by Lender or the Rating Agencies to effect the Securitization and/or deliver one or more new component notes to replace the original note or modify the original note to reflect multiple components of the Loan (and such new notes or modified note shall initially have the same weighted average coupon of the original note, but such new notes or modified note may require;
change the interest rate, Monthly Payment Date and amortization of the Loan), such that the pricing and marketability of the Securities and the size of each class of Securities and the rating assigned to each such class by the Rating Agencies shall provide the most favorable rating levels and achieve the optimum rating levels for the Loan; provided, however, any such amendments or agreements will not materially alter the payment terms set forth in this Agreement or the other Loan Documents or materially and adversely affect Borrower or reduce in a material manner Borrower’s rights under this Agreement and the other Loan Documents, or impose additional material obligations or liabilities upon Borrower or materially reduce the rights of Borrower. In connection with a Securitization, Borrower shall cooperate with Lender to implement any Re-Dating (v) provide access toincluding obtaining a modification of any Interest Rate Cap Agreement), and conduct tours of, the Property; and
(vi) provide certifications or other evidence to satisfy all requirements of reliance acceptable to Lender and each of the Rating Agencies with respect to third party reports the Loan and other information obtained the Securitization as required by this Section 9.1. If Borrower shall fail to cooperate with Lender as set forth in connection this Section 9.1 within ten (10) Business Days of each initial request by Lender, Lender is hereby appointed as Borrower’s attorney in fact to execute any and all documents necessary to accomplish the Re-Dating, including, without limitation, obtaining a modification of any Interest Rate Cap Agreement. For purposes of this subsection (v), (y) the phrase “initial request” shall mean the initial request made by Lender with respect to a particular issue with reasonable specificity and shall include all related issues arising directly or logically therefrom such that issues arising directly or logically therefrom shall not serve to extend the origination ten (10) Business Day deadline imposed pursuant to this subsection (v) and (z) the ten (10) Business Day deadline referred to in this subsection (v) shall be extended with respect to any “initial request” to the extent reasonably necessary to enable Borrower to comply with such request. Notwithstanding the foregoing, in the event that the Securitization is a participation or syndication of the Loan, then for so long as UBS retains an ownership interest in the Loan, which interest is not immaterial, Borrower shall deal solely with UBS and the Servicer of UBS for all purposes under this Agreement and the other Loan or Documents, provided that Borrower shall cooperate with UBS with respect to reasonable requests made to UBS by any Updated Informationof the other interest holders in the Loan.
(v) attend management meetings and conduct tours of the Property.
(c) If, at the time one or more Disclosure Documents are being prepared for a securitization, Lender reasonably expects that Borrower agrees that (i) Lender may disclose any information relating to Borroweralone or Borrower and one or more affiliates of Borrower collectively, its Affiliates, or the Property alone or the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms Property and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information parcel(s) of real property, together with improvements thereon and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if requiredpersonal property related thereto, and in the manner prescribed, by applicable Legal Requirements.
(d) If requested by Lender, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably requested by Lender.that
Appears in 1 contract
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge or otherwise transfer the Loan or any portion thereof or interest therein to any Person, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public single asset or pooled loan securitizations. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”).
(b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts to:
(i) (A) provide updated financial and other information with respect to the PropertyProperties, the business operated at the PropertyProperties, Borrower, GuarantorGuarantors, any Affiliate of Borrower or GuarantorGuarantors and Manager, including, without limitation, the information set forth on Schedule VI attached hereto, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the each Property, and (C) at Lender’s expense, provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the each Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and the NRSROs, and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance and true sale, or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the PropertyProperties, Borrower, Guarantor Guarantors and any Affiliate of Borrower or GuarantorGuarantors, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated (as of the closing date of any Secondary Market Transaction) representations and warranties made in the Loan Documents (with such modifications as necessary to make such representations and warranties then accurate) and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender or the Rating Agencies may require;
(v) provide access to, and conduct tours of, the PropertyProperties; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(c) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property Properties or the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements.
(d) If requested by Lender, Borrower shall use commercially reasonable efforts to provide Lender, promptly as soon as reasonably practical upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably requested by Lender.
Appears in 1 contract
Samples: Loan Agreement (Sun Communities Inc)
Sale of Mortgage and Securitization. (a) Lender shall have the right at its expense (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions transaction referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “Secondary Market Transaction” "SECONDARY MARKET TRANSACTIONS" and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”"SECURITIZATION". Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”"SECURITIES"). Lender shall pay all reasonable third-party costs and expenses hereafter incurred by Borrower in connection with any Secondary Market Transaction or Securitization. In the event that Lender sells participation interests in the Loan or includes only a portion of the Loan in a Securitization or otherwise transfers only a portion of the Loan, the Loan shall be administered by a single agent or master servicer and Borrower shall deal solely with such single agent or master servicer in connection with all matters (including, without limitation, Lender consents and approvals) relating to the Loan.
(b) If requested by Lender, Borrower shall use reasonable efforts to assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, and the information set forth on Schedule VI attached heretoManager, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Property and (C) provide permit Lender to obtain updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s's only), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”"UPDATED INFORMATION"), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) at Lender's expense, provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance, and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor Property and any Affiliate of Borrower or Guarantorand its Affiliates, which counsel and opinions shall be reasonably satisfactory to Lender and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents Documents, with appropriate modifications to reflect changed circumstances which do not otherwise constitute a Default under the Loan Documents, and such additional representations and warranties, in each case, consistent with factif accurate, as Lender or the Rating Agencies may reasonably require;; and
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s 's organizational documents as Lender reasonably requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) change the interest rate, the stated maturity or the Rating Agencies may require;
amortization of principal as set forth herein or in the Note, (vB) provide access to, and conduct tours of, the Property; and
(vi) provide certifications modify or amend any other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination economic term of the Loan, or (C) otherwise increase the obligations or decrease the rights of Borrower under the Loan or any Updated InformationDocuments.
(c) If requested by Lender for the sole purpose of facilitating the requirements of Lender's compliance with SEC Staff Accounting Bulletin 71 or any supplement or successor thereto, Borrower agrees shall provide Lender (at Lender's expense to the extent of any incremental costs over the cost incurred by Borrower for the financial statements otherwise required to be provided by Borrower pursuant to this Agreement) with the following financial statements with respect to Mezzanine Borrower or the Property, as applicable (it being understood that Lender shall request (A) full financial statements only if it anticipates that the principal amount of the Loan at the time of Securitization may, or if the principal amount of the Loan at any time during which the Loan is included in a Securitization does, equal or exceed 20% of the aggregate principal amount of all mortgage loans included in the Securitization and (B) summaries of such financial statements if the principal amount of the Loan at any such time equals or exceeds 10% of such aggregate principal amount):
(i) Lender may disclose any information relating As of the Closing Date, a balance sheet with respect to Borrowerthe Property as of the end of the two most recent Fiscal Years, its Affiliatesmeeting the requirements of Section 210.3 01 of Regulation S-X of the Securities Act and statements of income and statements of cash flows with respect to the Property for the three most recent Fiscal Years (but not prior to May 1, 1998), meeting the requirements of Section 210.3-02 of Regulation S-X, (all of such financial statements, collectively, the "STANDARD STATEMENTS"); provided, however, that if the Property would be deemed to constitute a business and not real estate under Regulation S-X that has been acquired by Borrower from an unaffiliated third party, as to which the other conditions set forth in Section 210.3-05 of Regulation S-X for provision of financial statements in accordance with such Section have been met, at Lender's election in lieu of or in addition to the Loan Standard Statements otherwise required by this Section 9.1(c)(i), Borrower shall instead provide the financial statements required by such Section 210.3-05 of Regulation S-X (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and "ACQUIRED PROPERTY Statements").
(ii) Not later than 45 days after the findings and conclusions end of any thirdeach fiscal quarter following the Closing Date, a financial statement prepared in accordance with Section 210.10-party due diligence report obtained by Lender or other Indemnified Persons may 01 of Regulation S-X (provided, that if for such corresponding period of the most recent Fiscal Year Acquired Property Statements were permitted to be made publicly available if requiredprovided hereunder pursuant to paragraph (i) above, and in the manner prescribed, by applicable Legal Requirements.
(d) Borrower shall instead provide Acquired Property Statements for such corresponding period). If requested by Lender, Borrower shall use commercially reasonable efforts to also provide Lender, promptly upon request"summarized financial information," as defined in Section 210.1-02(bb) of Regulation S-X, with any respect to such quarterly financial statements.
(iii) Not later than 60 days after the end of each Fiscal Year following the Closing Date, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any balance sheet of the foregoing) or required by any other Legal RequirementsProperty as of the end of such Fiscal Year, in each casemeeting the requirements of Section 210.3-01 of Regulation S-X, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably requested by Lender.and statements of income and statements of cash flows of the Property for such Fiscal Year, meeting the requirements of Section 210.3-02
Appears in 1 contract
Sale of Mortgage and Securitization. (a) Subject to the limitations in Section 11.27, Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions transaction referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iiiii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”).
(b) If requested by Lender, Borrower Borrower, all at Lender’s sole cost and expense (except for Borrower’s legal fees), shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, and the information set forth on Schedule VI attached heretoManager, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance, and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor Property and any Affiliate of Borrower or Guarantorand Affiliates, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;; and
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender reasonably requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) change the interest rate, the stated maturity or the Rating Agencies may require;
amortization of principal as set forth herein or in the Note, (vB) provide access to, and conduct tours of, the Property; and
(vi) provide certifications modify or amend any other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination material economic term of the Loan Loan, or any Updated Information(C) materially increase Borrower’s obligations hereunder.
(c) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property Any offering memorandum or the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained similar document delivered by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements.
(d) If requested by Lender, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant Securitization, assignment or participation of the Loan shall contain a statement which is substantially similar to the Securities Act following, except as may be tailored for the particular document: “This Memorandum has been prepared by the Depositor solely for the purpose of offering the Certificates described herein. Notwithstanding any investigation that Xxxxxx Xxxxxxx & Co. Incorporated, [ ] and [ ] (includingeach, but an “Initial Purchaser” and together, the “Initial Purchasers”) may have made with respect to the information set forth herein, this Memorandum does not limited constitute, and shall not be construed as, any representation or warranty by the Initial Purchasers as to the adequacy or accuracy of the information set forth herein. Delivery of this Memorandum to any person other than the prospective investor and those persons, if any, retained to advise such prospective investor with respect to the possible offer and sale of the Certificates is unauthorized, and any disclosure of any of its contents for any purpose other than considering an investment in the Certificates is strictly prohibited. A prospective investor shall not be entitled to, Regulation AB)and must not rely on, this Memorandum unless it was furnished to such prospective investor directly by the Exchange ActDepositor or any Initial Purchaser,” or, at Lender’s sole option, “This offering memorandum is furnished on a confidential basis solely for the purpose of evaluating the investment offered hereby. The information contained herein may not be reproduced or used in whole or in part for any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably requested by Lenderpurpose.”
Appears in 1 contract
Sale of Mortgage and Securitization. (a) Lender shall have the right right, at Lender’s cost and without the consent of Borrower, any Guarantor or any Affiliate of Borrower or any Guarantor, (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any PersonLoan, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, Borrower shall use commercially reasonable efforts to and shall cause Guarantors to use commercially reasonable efforts to assist Lender Lender, at Lender’s expense, in satisfying the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts toand shall in any event upon Lender’s request:
(i) (A) provide updated financial and other customary information with respect to the PropertyProperties, the business operated at the PropertyProperties, Borrower, Guarantor, any Affiliate of Borrower or Guarantorand each Manager, including, without limitation, the information set forth on Schedule VI Exhibit B attached hereto, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenanttenant) relating to the PropertyProperties, and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property Properties (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) cause counsel to provide legal opinions of counsel, which may be relied upon by Lender and the NRSROsLender, trustee in any Securitization, underwriters, NRSROs and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, or matters of Delaware and federal bankruptcy law relating to limited partners and/or limited liability companies, any other opinion customary with respect matters covered in the opinions delivered to loans comparable to the Loan in size and character in Secondary Market Transactions Lender at Closing or as required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the PropertyProperties, Borrowerthe Loan Documents, Guarantor and any Affiliate of Borrower or Guarantorand its Affiliates, which counsel and opinions shall be reasonably satisfactory to Lender and satisfactory to the Rating Agencies;; and
(iii) provide updated (as of the closing date of any Secondary Market Transaction) representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, as Lender or the Rating Agencies may require;
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender requested by Lender; provided, however, that Borrower shall not be required to modify or the Rating Agencies may require;amend any Loan Document if such modification or amendment would
(vA) provide access to, and conduct tours of, cause the Property; andinitial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification,
(viB) provide certifications cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Updated InformationGuarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender expects that Borrower agrees alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall, at Lender’s expense, furnish to Lender upon reasonable request the following financial information:
(i) if Lender reasonably expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may disclose equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably expects that the principal amount of the Loan together with any information relating Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to Borrower, its Affiliatesbe included in the Securitization, the Property or financial statements in respect of the Loan Properties required under Item 1112(b)(2) of Regulation AB (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (includingwhich includes, but may not be limited to, investors a balance sheet with respect to the entity that Lender reasonably determines to be a Significant Obligor) for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X.
(d) Further, if reasonably requested by Lender, Borrower shall, promptly at Lender’s expense, furnish to Lender financial data or prospective investors financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any tenant of any Individual Property (if available and not subject to requirements of confidentiality under the terms of the applicable Lease) if, in connection with a Securitization, Lender expects there to be, as of the cutoff date for such Securitization, a concentration with respect to such tenant or group of Affiliated tenants within all of the mortgage loans included or expected to be included in the SecuritiesSecuritization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor. Borrower shall, at Lender’s expense, use commercially reasonable efforts to furnish to Lender, in connection with the NRSROspreparation of the Disclosure Documents and on an ongoing basis, investment banking firmsfinancial data and/or financial statements with respect to such tenants meeting (if available and not subject to requirements of confidentiality under the terms of the applicable Lease) the requirements of Item 1112(b)(1) or (2) of Regulation AB, accounting firmsas specified by Lender, law firms but only for so long as such entity or entities are a Significant Obligor and other third-party advisory and service providers either (x) filings pursuant to the Exchange Act in connection with or relating to a Securitizationthe Securitization (an “Exchange Act Filing”) actually or potentially involved in or related are required to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the manner prescribed, by Securities under Regulation AB or applicable Legal Requirements.
(de) If Lender reasonably determines in good faith that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall, at Lender’s expense, furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) Any financial data or financial statements provided pursuant to this Section 9.1 shall be furnished at Lender’s expense to Lender within the following time periods:
(i) with respect to information requested in connection with the preparation of Disclosure Documents for a Securitization, within ten (10) Business Days after notice from Lender; and
(ii) with respect to ongoing information required under Section 9.1(d) and (e) above, (1) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (2) not later than seventy-five (75) days after the end of each Fiscal Year of Borrower.
(g) If reasonably requested by Lender, Borrower shall, at Lender’s expense, provide Lender, promptly following Lender’s reasonable request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements identified by Lender and relating to a Securitization or as shall otherwise be reasonably requested by Lender or, in the case of a private securitization such statements or information as Lender shall reasonably determine to be necessary to be included.
(h) If requested by Lender, whether in connection with a Securitization or at any time thereafter during which the Loan and any Related Loans are included in a Securitization, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate a list of tenants (including items required all affiliates of such tenants) that in the aggregate (1) occupy 10% or items that would be required if more (but less than 20%) of the Securities issued in connection with a Securitization were offered publiclytotal floor area of the improvements or represent 10% or more (but less than 20%) to satisfy any of aggregate base rent, and all disclosure requirements (2) occupy 20% or more of the total floor area of the improvements or represent 20% or more of aggregate base rent.
(i) All financial statements provided by Borrower pursuant to this Section 9.1(c), (d), (e) or (f) shall be prepared in accordance with GAAP, and shall meet the Securities Act (includingapplicable requirements of Regulation S-K or Regulation S-X, but not limited toas applicable, Regulation AB), the Exchange Act, any and other applicable securities laws or any amendment, modification or replacement Legal Requirements. All financial statements provided by Borrower pursuant to any of the foregoingclause (c) or required (d) relating to a Fiscal Year shall be audited by any Independent Accountants in accordance with GAAP, Regulation S-X or Regulation S-K, as applicable, Regulation AB, and all other applicable Legal Requirements, in each caseshall be accompanied by the manually executed report of the Independent Accountants thereon, which report shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and all other applicable Legal Requirements, and shall be further accompanied by a manually executed written consent of the Independent Accountants, in connection with form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document or and any Exchange Act Filing and to the use of the name of such Independent Accountants and the reference to such Independent Accountants as “experts” in any Disclosure Document and Exchange Act Filing (or as may comparable information is required to otherwise be available to holders of the Securities under Regulation AB or applicable Legal Requirements), all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial statements of the Borrower shall be certified by the chief financial officer of Borrower, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this paragraph.
(j) If reasonably requested by Lender, Borrower shall review any information regarding the Properties, tenants, Borrower and Guarantors which is contained in any Disclosure Document (including any interim drafts thereof and any amendments or supplements thereto) in order to confirm that to its knowledge, no such Disclosure Document contains any untrue statement of a material fact or omits any material fact necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading, and to the extent any such Disclosure Document contains any such material misstatements or omissions to correct any such material misstatements or omissions within five (5) Business Days following Borrower’s receipt thereof. Borrower shall not be liable hereunder for any material misstatement or omission contained in the Disclosure Document due to Lender’s failure to incorporate Borrower’s requested changes or modifications.
(k) For all purposes under this Agreement, if any Securities are offered pursuant to a “private” Securitization pursuant to an exemption under Rule 144A or Regulation D under the Securities Act, the provisions of Regulation AB, Regulation S-K, Regulation S-X and any other disclosure provisions of the Securities Act and/or Exchange Act, as applicable, shall be deemed to apply to such “private” Securitization as if such offering of Securities were being conducted pursuant to a registered public offering under the Securities Act.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital Hospitality Trust, Inc.)
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan as a whole loan or sell or otherwise transfer any portion thereof or any interest therein to any Persontherein, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or any interest therein in one or more private or public single asset or pooled loan securitizations. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions transaction referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. .” Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities.”).
(b) If requested by Lender, Borrower shall use commercially reasonable efforts to assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or marketplace, by the Rating Agencies or applicable by any Legal Requirements in connection with any Secondary Market TransactionsTransactions (including any Exchange Act Filings or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements), including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, Guarantor and Manager (including, without limitation, the information set forth on Schedule VI attached V hereto), (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Property and (C) provide updated appraisals, market studies, environmental audits, reviews and reports (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in required under clauses (A), (B) and (C) shall hereinafter be referred to collectively as the “Updated Information”), together, if customary, together with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) use commercially reasonable efforts to provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, NRSROs and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance, and “true sale” or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor and any Affiliate of Borrower or Guarantor, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide provide, and cause to be provided, updated (as of the closing date of any Secondary Market Transaction) representations and warranties made in the Loan Documents (with such changes as may be required to reflect changed of fact after the date hereof) and make, and cause to be made, such additional representations and warranties, in each case, warranties as may be reasonably requested by Lender if required by the Rating Agencies and consistent with factthe facts covered by such representations and warranties as they exist on the date thereof;
(iv) execute, and cause to be executed, such amendments, replacements or other modifications to Borrower’s Organizational Documents or the Loan Documents as may be requested by Lender or the Rating Agencies to effect the Secondary Market Transactions; provided, however, that Borrower shall not be required to amend, restate or otherwise modify any Loan Document if such amendment, restatement or other modification would (A) increase the initial weighted average interest rate or change the amortization of principal set forth herein or in the Note (except that the weighted average interest rate or the amortization of principal may require;
subsequently change due to involuntary prepayments or if an Event of Default shall occur), (ivB) subject amend or otherwise modify any other material economic term of the Loan, (C) alter in any material respect the transfer restrictions relating to Section 9.3direct or indirect interests in the Property (including any equity interests in the direct or indirect owners of Borrower), execute modifications and amendments to or (D) impose any material liability or restriction on Borrower or any Affiliate of Borrower not contained in the Loan Documents and Borrower’s organizational documents or Organizational Documents as Lender of the date hereof or the Rating Agencies may requireotherwise materially adversely affect Borrower or its Affiliates;
(v) attend management meetings, provide access to, to the Property and conduct tours of, of the Property; and
(vi) provide certifications provide, and cause to be provided, certificates or other evidence of reliance acceptable satisfactory to Lender and the Rating Agencies with respect to any information or third party reports and other information obtained in connection with the origination of the Loan or any Updated Information from Borrower, Guarantor, any Affiliate of Borrower or Guarantor, Manager and any accountants, appraisers, engineers, environmental assessment experts and other experts or third party providers of such information, reports or Updated Information.
(c) If, at the time one or more Disclosure Documents are being prepared for or in connection with a Securitization, Lender expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Property and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Property for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Property is the Significant Obligor and the Property (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any tenant of the Property if, in connection with a Securitization, Lender expects there to be, as of the cut-off date for such Securitization, a concentration with respect to such tenant or group of Affiliated tenants within all of the mortgage loans included or expected to be included in the Securitization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, on an ongoing basis, financial data or financial statements with respect to such tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (i) Exchange Act Filings in connection with or relating to the Securitization are required to be made under applicable Legal Requirements or (ii) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of any Borrower collectively, or the Property alone or the Property and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (i) Exchange Act Filings are required to be made under applicable Legal Requirements or (ii) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) Any financial data or financial statements provided pursuant to this Section 9.1 shall be furnished to Lender within the following time periods:
(i) with respect to information requested in connection with the preparation of Disclosure Documents for a Securitization, within ten (10) Business Days after notice from Lender; and
(ii) with respect to ongoing information required under Sections 9.1(d) and (e) above, (A) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (B) not later than seventy-five (75) days after the end of each Fiscal Year of Borrower.
(g) All financial data and financial statements provided by Borrower hereunder pursuant to Sections 9.1(c), (d), (e) and (f) hereof shall be prepared in accordance with GAAP, and shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and any and all other applicable Legal Requirements. All financial statements relating to a Fiscal Year shall be audited by independent accountants of Borrower acceptable to Lender in accordance with generally accepted auditing standards, Regulation S-X or Regulation S-K, as applicable, Regulation AB, and all other applicable Legal Requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and all other applicable Legal Requirements, and shall be further accompanied by a manually executed consent of the independent accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document, any Exchange Act Filing or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document, any Exchange Act Filing or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements, all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial data and financial statements (audited or unaudited) provided by Borrower shall be accompanied by an Officer’s Certificate which shall state that such financial data and financial statements meet the requirements set forth in the first sentence of this paragraph.
(h) In the event Lender determines, in connection with a Securitization, that financial statements and financial data required in order to comply with Regulation AB or any amendment, modification or replacement thereto or any other Legal Requirements are other than as provided herein, then notwithstanding the foregoing provisions of this Section 9.1, Lender may request, and Borrower shall promptly provide, such other financial statements and financial data as Lender determines to be necessary or appropriate for such compliance.
(i) Without limiting the generality of Section 9.1(h) above, if requested by Lender, Borrower shall promptly provide Lender with any financial statements or financial, statistical, operating or other information as Lender shall determine to be required pursuant to Regulation AB or any amendment, modification or replacement thereto or any other Legal Requirements in connection with any Disclosure Document, any Exchange Act Filing or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements or as shall otherwise be reasonably requested by Lender.
(j) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property or any aspect of the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (includingthe parties requesting such information and, but not limited to, investors or prospective investors in the Securitiesif applicable, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved NRSROs in or related to connection with any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) Transaction. Borrower also understands that the findings and conclusions of any third-party due diligence report obtained by Lender or other Securitization Indemnified Persons Parties may be made publicly available if required, and in the manner prescribed, by Section 15E(s)(4)(A) of the Exchange Act, any rules promulgated thereunder or any other applicable Legal Requirements.
(dk) If requested by In connection with Lender, Borrower shall use commercially reasonable ’s efforts to provide Lendereffect any Secondary Market Transaction, promptly upon request, with any financial statements, financial, statistical all reasonable third party costs and expenses incurred by Borrower and Guarantor on or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if prior to the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements closing of such Secondary Market Transaction pursuant to the Securities Act this Section 9.1 (including, but not limited to, Regulation AB)without limitation, the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any fees and expenses of the foregoingRating Agencies) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise shall be reasonably requested reimbursed by Lender.
Appears in 1 contract
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions transaction referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. .” Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities.”).
(b) If requested by Lender, Borrower Borrowers shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the PropertyIndividual Properties, the business operated at the PropertyIndividual Properties, BorrowerBorrowers and, Guarantorto the extent reasonably available to Borrowers, any Affiliate of Borrower or Guarantor, including, without limitation, the information set forth on Schedule VI attached heretoeach Manager, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Individual Properties and (C) at Lender’s expense provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property Individual Properties (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance, and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor Individual Properties and any Affiliate of Borrower or GuarantorBorrowers and Affiliates, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, warranties substantially similar to the representations and warranties contained in each case, consistent with fact, the Loan Documents as Lender or the Rating Agencies may require;; and
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s the Guaranty Security Documents and Borrowers’ organizational documents reasonably requested by Lender; provided, however, that Borrowers shall not be required to modify or amend any Loan Document if such modification or amendment would (A) change the interest rate, the stated maturity or the amortization of principal as Lender set forth herein or in the Note, (B) modify or amend any other material economic term of the Loan, or (C) materially decrease the rights or materially increase the obligations of the Borrower. Any reports, statements or other information required to be delivered under this Section 9.1 shall be delivered in paper form or transmitted electronically in PDF or other similar format or Borrower may deliver such reports, statements and other information (A) on a diskette, or (B) in electronic form and prepared using Microsoft Word for Windows or WordPerfect for Windows files (which files may be prepared using a spreadsheet program and saved as word processing files), provided, that, delivery of such reports, statements and other information in such formats shall be subject to Borrowers’ satisfaction of the reporting and delivery obligations and requirements of the Servicer. Notwithstanding the foregoing, Borrowers shall be required to deliver original opinions, agreements, amendments, certificates of the Borrower or its Affiliates, and title insurance policies or endorsements, and Borrower shall be required to deliver originals of any other agreements, documents, certificates and reports if such originals are reasonably requested by Lender, the Servicer or the Rating Agencies may require;
(v) provide access to, and conduct tours of, the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(c) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements.
(d) If requested by Lender, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items otherwise required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably requested by LenderLoan Documents.
Appears in 1 contract
Samples: Loan Agreement (Wells Real Estate Investment Trust Inc)
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any PersonLoan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or interest therein in one or more private or public single asset or pooled loan securitizations. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or marketplace, by prospective investors, the Rating Agencies or Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including using commercially reasonable efforts to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or GuarantorGuarantor(s) and the Manager, including, without limitation, the information set forth on Schedule VI Exhibit B attached hereto, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, and (C) provide updated appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and the NRSROsLender, trustee in any Securitization, underwriters, NRSROs and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrowerthe Loan Documents, Guarantor and any Affiliate of Borrower or Guarantorand its Affiliates, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;; and
(iv) subject (A) review any Disclosure Document or any interim draft thereof furnished by Lender to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender or the Rating Agencies may require;
(v) provide access to, and conduct tours of, the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies Borrower with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(c) Borrower agrees contained therein that (i) was furnished to Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower in connection with the preparation of such Disclosure Document or in connection with the underwriting or closing of the Loan, including financial statements of Borrower and Guarantor, operating statements and rent rolls with respect to the Property, and (B) within three (3) Business Days following Borrower’s receipt thereof, provide to Lender in writing any revisions to such Disclosure Document or interim draft thereof necessary or advisable to insure that such reviewed information does not contain any untrue statement of its a material fact or omit to state any material fact necessary to make statements contained therein not misleading.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to Lendermake payments on all or a part of the Loan) collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender expects that the principal amount of the Loan together with any Person Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (including10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Property and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, investors a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Property for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or prospective investors if Lender determines that the Property is the Significant Obligor and the Property (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Property (to the extent available to Borrower) if, in connection with a Securitization, Lender expects there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of affiliated Tenants within all of the mortgage loans included or expected to be included in the SecuritiesSecuritization such that such Tenant or group of affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the NRSROspreparation of the Disclosure Documents and on an ongoing basis, investment banking firmsfinancial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, accounting firmsas specified by Lender, law firms but only for so long as such entity or entities are a Significant Obligor and other third-party advisory and service providers either (x) filings pursuant to the Exchange Act in connection with or relating to a Securitizationthe Securitization (an “Exchange Act Filing”) actually or potentially involved in or related are required to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the manner prescribed, by Securities under Regulation AB or applicable Legal Requirements.
(de) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Property alone or the Property and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) Any financial data or financial statements provided pursuant to this Section 9.1 shall be furnished to Lender within the following time periods:
(i) with respect to information requested in connection with the preparation of Disclosure Documents for a Securitization, within ten (10) Business Days after notice from Lender; and
(ii) with respect to ongoing information required under Section 9.1(d) and (e) above, (1) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (2) not later than seventy-five (75) days after the end of each Fiscal Year of Borrower.
(g) If requested by Lender, Borrower shall use commercially reasonable efforts provide Lender, promptly, and in any event within three (3) Business Days following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by the Lender.
(h) If requested by Lender, whether in connection with a Securitization or at any time thereafter during which the Loan and any Related Loans are included in a Securitization, Borrower shall provide Lender, promptly upon request, a list of Tenants (including all affiliates of such Tenants) that in the aggregate (1) occupy 10% or more (but less than 20%) of the total floor area of the improvements or represent 10% or more (but less than 20%) of aggregate base rent, and (2) occupy 20% or more of the total floor area of the improvements or represent 20% or more of aggregate base rent.
(i) All financial statements provided by Borrower pursuant to this Section 9.1(c), (d), (e) or (f) shall be prepared in accordance with GAAP, and shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and other applicable Legal Requirements. All financial statements relating to a Fiscal Year shall be audited by Independent Accountants in accordance with generally accepted auditing standards, Regulation S-X or Regulation S-K, as applicable, Regulation AB, and all other applicable Legal Requirements, shall be accompanied by the manually executed report of the Independent Accountants thereon, which report shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and all other applicable Legal Requirements, and shall be further accompanied by a manually executed written consent of the Independent Accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such Independent Accountants and the reference to such Independent Accountants as “experts” in any Disclosure Document and Exchange Act Filing (or comparable information is required to otherwise be available to holders of the Securities under Regulation AB or applicable Legal Requirements), all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial statements shall be certified by the chief financial officer of Borrower, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this paragraph.
(j) In connection with any financial statementsSecondary Market Transaction, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary have the right, and Borrower hereby authorizes Lender, to disclose any and all information in Lender’s possession regarding Borrower, Guarantor, any Manager, any tenants and provisions of any leases, the Property and/or the Loan in any Disclosure Document, in any promotional, pre-marketing materials or appropriate (including items required (marketing materials that are prepared by or items that would be required if the Securities issued on behalf of Lender in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws such Secondary Market Transaction or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document oral or written presentation made by or on behalf of Lender, including without limitation, to any Exchange Act Filing actual or as may otherwise be reasonably requested by Lenderpotential investors and any Rating Agencies and other NRSROs.
Appears in 1 contract
Sale of Mortgage and Securitization. (a) Subject to the limitations in Section 11.27, Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions transaction referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. .” Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities.”).
(b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, and the information set forth on Schedule VI attached heretoManager, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance, and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor Property and any Affiliate of Borrower or Guarantorand Affiliates, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;; and
(iii) provide updated (as of the closing date of any Secondary Market Transaction) representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, as Lender or the Rating Agencies may require;
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender reasonably requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) change the interest rate, the stated maturity or the Rating Agencies may require;
amortization of principal as set forth herein or in the Note, (vB) provide access to, and conduct tours of, the Property; and
(vi) provide certifications modify or amend any other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination material economic term of the Loan or any Updated Information(C) materially increase Borrower’s obligations, or materially decrease Borrower’s rights, under the Loan Documents.
(c) If, at the time one or more Disclosure Documents are being prepared for a Securitization, Lender expects that Borrower agrees that alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request (i) the selected financial data or, if applicable, Net Operating Income, required under Item 1112(b)(1) of Regulation AB, if Lender may disclose expects that the principal amount of the Loan together with any information Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included, as applicable, in the Securitization or (ii) the financial statements required under Item 1112(b)(2) of Regulation AB, if Lender expects that the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included, as applicable, in the Securitization. Such financial data or financial statements shall be furnished to Lender (A) within ten (10) Business Days after notice from Lender in connection with the preparation of Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (C) not later than seventy-five (75) days after the end of each fiscal year of Borrower; provided, however, that Borrower shall not be obligated to furnish financial data or financial statements pursuant to clauses (B) or (C) of this sentence with respect to any period for which a filing pursuant to the Exchange Act in connection with or relating to Borrowerthe Securitization (an “Exchange Act Filing”) is not required. If requested by Lender, its AffiliatesBorrower shall furnish to Lender financial data and/or financial statements for any tenant of any of the Properties if, in connection with a Securitization, Lender expects there to be, with respect to such tenant or group of affiliated tenants, a concentration within all of the Property mortgage loans included or expected to be included, as applicable, in the Loan Securitization such that such tenant or group of affiliated tenants would constitute a Significant Obligor.
(including information d) All financial data and financial statements provided by or on behalf Borrower hereunder pursuant to Section 9.1(c) and (d) hereof shall be prepared in accordance with GAAP, and shall meet the requirements of Regulation AB and other applicable legal requirements. All financial statements referred to in Section 9.1(c) above shall be audited by independent accountants of Borrower or any acceptable to Lender in accordance with Regulation AB and all other applicable legal requirements, shall be accompanied by the manually executed report of its Affiliates the independent accountants thereon, which report shall meet the requirements of Regulation AB and all other applicable legal requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the same time as the related financial statements are required to be provided. All financial data and financial statements (audited or unaudited) to any Person (including, but not limited to, investors or prospective investors provided by Borrower under Section 9.1(c) shall be accompanied by an Officer’s Certificate which shall state that such financial statements meet the requirements set forth in the Securitiesfirst sentence of this Section 9.1(d). Notwithstanding anything to the contrary set forth herein or tin other Loan Documents, Lender shall be responsible for the NRSROsdifference in: (i) the costs incurred by Borrower in complying with the requirements set forth in Sections 9.1(c), investment banking firms9.1(d), accounting firms, law firms 9.1(e) and other third-party advisory and service providers relating to a Securitization9.1(f) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings costs incurred by Borrower in otherwise complying with the financial reporting requirements of this Agreement and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal RequirementsLoan Documents.
(de) If requested by Lender, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information or other information information, as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would to be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws AB or any amendment, modification or replacement to any of the foregoing) thereto or required by any other Legal Requirements, in each case, legal requirements in connection with any Disclosure Document or any Exchange Act Filing or as may shall otherwise be reasonably requested by Lender.
(f) In the event Lender determines, in connection with a Securitization, that the financial data and financial statements required in order to comply with Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the provisions of Section 9.1(c) and (d), Lender may request, and Borrower shall promptly provide, such other financial statements as Lender determines to be necessary or appropriate for such compliance.
Appears in 1 contract
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge or otherwise transfer the Loan or any portion thereof or interest therein to any Person, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public single asset or pooled loan securitizations. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”).
(b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or GuarantorGuarantor and Manager, including, without limitation, the information set forth on Schedule VI attached hereto, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and the NRSROs, and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance and true sale, or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor and any Affiliate of Borrower or Guarantor, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated (as of the closing date of any Secondary Market Transaction) representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender or the Rating Agencies may require, including, without limitation, the addition of one or more Independent Directors pursuant to the terms and provisions hereof;
(v) provide access to, and conduct tours of, the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(c) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements.
(d) If requested by Lender, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably requested by Lender.
Appears in 1 contract
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions transaction referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “Secondary Market Transaction” "SECONDARY MARKET TRANSACTIONS" and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”"SECURITIZATION". Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”"CERTIFICATES").
(b) If requested by Lender, Borrower shall shall, at Borrower's sole cost and expense (except as specifically set forth herein), assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the PropertyIndividual Properties, the business operated at the PropertyIndividual Properties, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, and the information set forth on Schedule VI attached heretoManager, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Individual Properties and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s 's and, if appropriate, Phase II’s's), property condition reports and other due diligence investigations of the Property Individual Properties (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”"UPDATED INFORMATION"), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies, provided that the cost and expense of furnishing any of the foregoing which is duplicative of the deliveries provided to Lender as of the Closing Date (or is duplicative of deliveries provided to Lender pursuant to any previous Secondary Market Transaction) shall be borne by Lender;
(ii) provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance, and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor Individual Properties and any Affiliate of Borrower or Guarantorand Affiliates, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies, provided that the cost and expense of furnishing any of the foregoing which is duplicative of the deliveries provided to Lender as of the Closing Date (or is duplicative of deliveries provided to Lender pursuant to any previous Secondary Market Transaction) shall be borne by Lender;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;; and
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s 's organizational documents as Lender reasonably requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) change the interest rate, the stated maturity or the Rating Agencies may require;
amortization of principal as set forth herein or in the Note, or (vB) provide access to, and conduct tours of, the Property; and
(vi) provide certifications modify or amend any other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination material economic term of the Loan or any Updated Informationother terms in a manner that is materially less favorable to Borrower.
(c) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements.
(d) If requested by Lender, Borrower shall use commercially reasonable efforts provide Lender with the following financial statements (it being understood that Lender shall request (i) full financial statements if it anticipates that the principal amount of the Loan at the time of Securitization may, or if the principal amount of the Loan at any time during which the Loan is included in a Securitization does, equals or exceeds 20% of the aggregate principal amount of all mortgage loans included in the Securitization and (ii) summaries of such financial statements if the principal amount of the Loan at any such time equals or exceeds 10% of such aggregate principal amount):
(i) As of the Closing Date, a balance sheet with respect to provide Lenderthe Individual Properties on a combined basis for the two most recent Fiscal Years, promptly upon requestmeeting the requirements of Section 210.3-01 of Regulation S-X of the Securities Act and statements of income and statements of cash flows with respect to the Individual Properties for the three most recent Fiscal Years, with any meeting the requirements of Section 210.3-02 of Regulation S-X, and, to the extent that such balance sheet is more than 135 days old as of the Closing Date, interim financial statements of the Individual Properties meeting the requirements of Section 210.3-01 and 210.3-02 of Regulation S-X (all of such financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB)collectively, the Exchange Act"STANDARD STATEMENTS"); PROVIDED, any other applicable securities laws or any amendmentHOWEVER, modification or replacement that with respect to any of the foregoing) Individual Properties that would be deemed to constitute a business and not real estate under Regulation S-X that have been acquired by Borrower from an unaffiliated third party (such Individual Properties, "ACQUIRED INDIVIDUAL PROPERTIES"), as to which the other conditions set forth in Section 210.3-05 of Regulation S-X for provision of financial statements in accordance with such Section have been met, at Lender's election in lieu of or in addition to the Standard Statements otherwise required by any other Legal Requirementsthis Section 9.1(c)(i), in Borrower shall instead provide the financial statements required by such Section 210.3-05 of Regulation S-X ("ACQUIRED PROPERTY STATEMENTS").
(ii) Not later than 30 days after the end of each casefiscal quarter following the Closing Date, in connection with any Disclosure Document or any Exchange Act Filing or a balance sheet of the Individual Properties as may otherwise of the end of such fiscal quarter, meeting the requirements of Section 210.3-01 of Regulation S-X, and statements of income and statements of cash flows of the Individual Properties for the period commencing on the day following the last day of the most recent Fiscal Year and ending on the date of such balance sheet and for the corresponding period of the most recent Fiscal Year, meeting the requirements of Section 210.3-02 of Regulation S-X (provided, that if for such corresponding period of the most recent Fiscal Year Acquired Property Statements were permitted to be reasonably provided hereunder pursuant to paragraph (i) above, Borrower shall instead provide Acquired Property Statements for such corresponding period). If requested by Lender, Borrower shall also provide "summarized financial information," as defined in Section 210.1-02(bb) of Regulation S-X, with respect to such quarterly financial statements.
(iii) Not later than 60 days after the end of each Fiscal Year following the Closing Date, a balance sheet of the Individual Properties as of the end of such Fiscal Year, meeting the requirements of Section 210.3-01 of Regulation S-X, and statements of income and statements of cash flows of the Individual Properties for such Fiscal Year, meeting the requirements of Section 210.3-02
Appears in 1 contract
Samples: Loan Agreement (Hilton Hotels Corp)
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizations. securitization (The the transactions referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. .” Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”).
(b) If requested by Lender, for so long as the Loan is outstanding, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts toTransaction:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, and the information set forth on Schedule VI attached heretoManager, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and the NRSROs, and their respective counsel, agents and representativesRating Agencies, as to bankruptcy non-consolidation, fraudulent conveyance, and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor Property and any Affiliate of Borrower or Guarantorand Affiliates, which counsel and opinions shall be reasonably satisfactory to Lender and satisfactory to the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;require and consistent with the facts covered by the representations and warranties contained in this Agreement; and
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender reasonably requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) change the interest rate, the stated maturity or the Rating Agencies may require;
amortization of principal as set forth herein or in the Note, (vB) provide access to, and conduct tours of, the Property; and
(vi) provide certifications modify or amend any other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination material economic term of the Loan or (C) otherwise materially increase the obligations or decrease the rights of Borrower under the Loan Documents. Notwithstanding the foregoing, Lender shall (unless Borrower shall otherwise be required to deliver any Updated Informationof the foregoing under another provision of this Agreement at its cost and expense) (x) pay the costs and expenses incurred by Lender with respect to the issuance of any Securities and any other costs and expenses incurred by Lender in connection with a Securitization and (y) reimburse Borrower for all reasonable third party fees (including the reasonable fees and disbursements of Borrower’s attorneys) actually incurred by Borrower in connection with Borrower’s cooperation with Lender pursuant to this Section 9.1(b).
(c) If requested by Lender, Borrower agrees that shall provide Lender with the following financial statements:
(i) If, at the time a Disclosure Document is being prepared for a Securitization, Lender may disclose any information expects that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Property alone or the Property and Related Property collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request (x) the selected financial data relating to Borrower, its Affiliates, Borrower or the Property or, if applicable, Net Operating Income, required under Item 1112(b)(1) of Regulation AB, if Lender expects that the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization does, equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included, as applicable, in the Securitization or (y) the financial statements relating to Borrower or the Property required under Item 1112(b)(2) of Regulation AB, if Lender expects that the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization does, equal or exceed twenty percent (including information provided by 20%) of the aggregate principal amount of all mortgage loans included or on behalf expected to be included, as applicable, in the Securitization. Such financial data or financial statements shall be furnished to Lender (A) within ten (10) Business Days after notice from Lender in connection with the preparation of Disclosure Documents for the Securitization, (B) not later than forty (40) days after the end of each fiscal quarter of Borrower and (C) not later than eighty-five (85) days after the end of each Fiscal Year of Borrower; provided, however, that Borrower shall not be obligated to furnish financial data or any financial statements pursuant to clauses (B) or (C) of its Affiliates to Lender) this sentence with respect to any Person (including, but not limited to, investors period for which a filing pursuant to the Exchange Act in connection with or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitizationthe Securitization (an “Exchange Act Filing”) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if is not required, and in the manner prescribed, by applicable Legal Requirements.
(d) . If requested by Lender, Borrower shall use commercially reasonable efforts to obtain and deliver to Lender financial data and/or financial statements for any tenant of the Property if, in connection with a Securitization, Lender expects there to be, with respect to such tenant or group of Affiliated tenants, a concentration within all of the mortgage loans included or expected to be included, as applicable, in the Securitization such that such tenant or group of affiliated tenants would constitute a Significant Obligor.
(ii) All financial data and financial statements provided by Borrower hereunder pursuant to this Section 9.1(c) shall meet the requirements of Regulation AB and other applicable legal requirements. All financial statements referred to in Section 9.1(c)(i)(y) above shall be audited by independent accountants of Borrower reasonably acceptable to Lender in accordance with Regulation AB and all other applicable legal requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation AB and all other applicable legal requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in form and substance reasonably acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and, if available to Borrower on a commercially reasonable basis, to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial data and financial statements (i.e., unaudited) provided by Borrower pursuant to this Section 9.1(c) shall be accompanied by an Officer’s Certificate stating the financial information attached thereto is true, accurate and complete in all material respects, but with no obligation to certify as to compliance with Regulation AB.
(iii) If requested by Lender in connection with a securitization, Borrower shall provide Lender, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information or other information information, as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would in good faith to be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws AB or any amendment, modification or replacement to any of the foregoing) thereto or required by any other Legal Requirements, in each case, legal requirements in connection with any Disclosure Document or any Exchange Act Filing or as may shall otherwise be reasonably requested by LenderLender to meet disclosure or rating agency requirements.
(iv) In the event Lender determines in good faith, in connection with a Securitization, that the financial statements required in order to comply with Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the provisions of Section 9.1(c)(ii) hereof, Lender may request, and Borrower shall promptly provide, such other financial data and financial statements as Lender determines in good faith to be necessary or appropriate for such compliance.
(v) Any reports, statements or other information required to be delivered pursuant to this Section 9.1(c) shall be delivered (i) in paper form, (ii) on a diskette, and (iii) if requested by Lender and within the capabilities of Borrower’s data systems without change or modification thereto, in electronic form and prepared using a Microsoft Word for Windows or WordPerfect for Windows files (which files may be prepared using a spreadsheet program and saved as word processing files). Borrower agrees that Lender may disclose information regarding the Property and Borrower that is provided to Lender pursuant to this Section 9.1(c)(v) in connection with the Securitization to such parties requesting such information in connection with such Securitization. Lender shall (unless Borrower shall otherwise be required to deliver any of the foregoing under another provision of this Agreement at its cost and expense) reimburse Borrower for all reasonable third party fees (including the reasonable fees and disbursements of Borrower’s attorneys) actually incurred by Borrower in connection with Borrower’s delivery of financial statements and other materials requested by Lender pursuant to this Section 9.1(c).
Appears in 1 contract
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan as a whole loan or sell or otherwise transfer any portion thereof or any interest therein to any Persontherein, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or any interest therein in one or more private or public single asset or pooled loan securitizations. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions transaction referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. .” Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities.”).
(b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or marketplace, by the Rating Agencies or applicable by any Legal Requirements in connection with any Secondary Market TransactionsTransactions (including any Exchange Act Filings or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements), including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, Guarantor and Manager (including, without limitation, the information set forth on Schedule VI attached V hereto), (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Property and (C) provide updated appraisals, market studies, environmental audits, reviews and reports (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in required under clauses (A), (B) and (C) shall hereinafter be referred to collectively as the “Updated Information”), together, if customary, together with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, NRSROs and their respective counsel, agents and representatives, as to bankruptcy non-consolidationconsolidation (if required by Lender or the Rating Agencies), fraudulent conveyance, and “true sale” or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor and any Affiliate of Borrower or Guarantor, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide provide, and cause to be provided, updated (as of the closing date of any Secondary Market Transaction) representations and warranties made in the Loan Documents and make, and cause to be made, such additional representations and warranties, in each case, consistent with fact, warranties as may be requested by Lender or the Rating Agencies may requireand consistent with the facts covered by such representations and warranties as they exist on the date thereof;
(iv) subject execute, and cause to Section 9.3be executed, execute such amendments, replacements or other modifications and amendments to Borrower’s Organizational Documents or the Loan Documents and Borrower’s organizational documents as may be requested by Lender or the Rating Agencies to effect the Secondary Market Transactions; provided, however, that Borrower shall not be required to amend, restate or otherwise modify any Loan Document if such amendment, restatement or other modification would (A) increase the initial weighted average interest rate or change the amortization of principal set forth herein or in the Note (except that the weighted average interest rate or the amortization of principal may require;subsequently change due to involuntary prepayments or if an Event of Default shall occur) or (B) amend or otherwise modify any other material economic term of the Loan; and
(v) attend management meetings, provide access to, to the Property and conduct tours of, of the Property; and
(vi) provide certifications provide, and cause to be provided, certificates or other evidence of reliance acceptable satisfactory to Lender and the Rating Agencies with respect to any information or third party reports and other information obtained in connection with the origination of the Loan or any Updated Information from Borrower, Guarantor, any Affiliate of Borrower or Guarantor, Manager and any accountants, appraisers, engineers, environmental assessment experts and other experts or third party providers of such information, reports or Updated Information.
(c) If, at the time one or more Disclosure Documents are being prepared for or in connection with a Securitization, Lender expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Property and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Property for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Property is the Significant Obligor and the Property (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any tenant of the Property if, in connection with a Securitization, Lender expects there to be, as of the cut-off date for such Securitization, a concentration with respect to such tenant or group of Affiliated tenants within all of the mortgage loans included or expected to be included in the Securitization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, on an ongoing basis, financial data or financial statements with respect to such tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (i) Exchange Act Filings in connection with or relating to the Securitization are required to be made under applicable Legal Requirements or (ii) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of any Borrower collectively, or the Property alone or the Property and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (i) Exchange Act Filings are required to be made under applicable Legal Requirements or (ii) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) Any financial data or financial statements provided pursuant to this Section 9.1 shall be furnished to Lender within the following time periods:
(i) with respect to information requested in connection with the preparation of Disclosure Documents for a Securitization, within ten (10) Business Days after notice from Lender; and
(ii) with respect to ongoing information required under Sections 9.1(d) and (e) above, (A) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (B) not later than seventy-five (75) days after the end of each Fiscal Year of Borrower.
(g) All financial data and financial statements provided by Borrower hereunder pursuant to Sections 9.1(c), (d), (e) and (f) hereof shall be prepared in accordance with GAAP, and shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and any and all other applicable Legal Requirements. All financial statements relating to a Fiscal Year shall be audited by independent accountants of Borrower acceptable to Lender in accordance with generally accepted auditing standards, Regulation S-X or Regulation S-K, as applicable, Regulation AB, and all other applicable Legal Requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and all other applicable Legal Requirements, and shall be further accompanied by a manually executed consent of the independent accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document, any Exchange Act Filing or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document, any Exchange Act Filing or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements, all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial data and financial statements (audited or unaudited) provided by Borrower shall be accompanied by an Officer’s Certificate which shall state that such financial data and financial statements meet the requirements set forth in the first sentence of this paragraph.
(h) In the event Lender determines, in connection with a Securitization, that financial statements and financial data required in order to comply with Regulation AB or any amendment, modification or replacement thereto or any other Legal Requirements are other than as provided herein, then notwithstanding the foregoing provisions of this Section 9.1, Lender may request, and Borrower shall promptly provide, such other financial statements and financial data as Lender determines to be necessary or appropriate for such compliance.
(i) Without limiting the generality of Section 9.1(h) above, if requested by Lender, Borrower shall promptly provide Lender with any financial statements or financial, statistical, operating or other information as Lender shall determine to be required pursuant to Regulation AB or any amendment, modification or replacement thereto or any other Legal Requirements in connection with any Disclosure Document, any Exchange Act Filing or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements or as shall otherwise be reasonably requested by Lender.
(j) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property or any aspect of the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (includingthe parties requesting such information and, but not limited to, investors or prospective investors in the Securitiesif applicable, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved NRSROs in or related to connection with any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) Transaction. Borrower also understands that the findings and conclusions of any third-party due diligence report obtained by Lender or other Securitization Indemnified Persons Parties may be made publicly available if required, and in the manner prescribed, by Section 15E(s)(4)(A) of the Exchange Act, any rules promulgated thereunder or any other applicable Legal Requirements.
(dk) If requested All costs and expenses incurred by LenderBorrower, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Guarantor and Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act this Section 9.1 (including, but not limited to, Regulation AB)without limitation, the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any fees and expenses of the foregoingRating Agencies) or required shall be paid by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably requested by LenderBorrower.
Appears in 1 contract
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person, entity other than to a publicly traded real estate investment trust of which the majority of its assets are office properties or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions transaction referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “"Secondary Market Transaction” Transactions" and the transactions referred to in clause (iii) shall hereinafter be referred to as a “"Securitization”". Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “"Securities”").
(b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market TransactionsSecuritization, including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, and the information set forth on Schedule VI attached hereto, Manager and (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “"Updated Information”"), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers or opinions of counsel auditors acceptable to Lender and the Rating Agencies;
(ii) (A) provide the Insolvency Opinion and (B) cooperate (at de minimis cost and expense to Borrower) with Lender in obtaining any other opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidationfraudulent conveyance, true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions Securitizations or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor and any Affiliate of Borrower or Guarantor, which counsel and opinions shall be satisfactory to Lender and the Rating Agenciesand/or its Affiliates;
(iii) provide updated (updated, as of the closing date of any Secondary Market Transaction) the Securitization, representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;; and
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s 's organizational documents as Lender reasonably requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) change the interest rate, the stated maturity or the Rating Agencies may require;
amortization of principal as set forth herein or in the Note, or (vB) provide access to, and conduct tours of, the Property; and
(vi) provide certifications modify or amend any other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination material term of the Loan or any Updated Information(including, without limitation, the provisions of Article VIII above.
(c) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements.
(d) If requested by Lender, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, cooperate with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with obtaining a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any FIRREA appraisal of the foregoing) or required by any other Legal Requirements, in each case, Property in connection with any Disclosure Document or Secondary Market Transaction, provided that Borrower is not required to pay for any Exchange Act Filing or as may otherwise be reasonably requested by Lendersuch appraisal.
Appears in 1 contract
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan as a whole loan or sell or otherwise transfer any portion thereof or any interest therein to any Persontherein, (ii) to sell participation interests in the Loan to any PersonLoan, or (iii) to securitize the Loan or any portion thereof or any interest therein in one or more private or public single asset or pooled loan securitizations. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions transaction referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. .” Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities.”)) Within a reasonable period of time following any Secondary Market Transaction whereby the party acting as “Lender” hereunder shall have been replaced by a successor entity, Lender shall provide notice to Borrower of such Secondary Market Transaction, which notice shall include the identity of such successor entity acting as “Lender” hereunder and such successor entity’s address for notices hereunder. Notwithstanding anything herein to the contrary, in no event shall Lender sell or otherwise transfer all or any portion of the Loan or sell any participation interests in the Loan to any Prohibited Lender Entity without the consent of Borrower; provided, however, that the foregoing prohibition shall not in any way restrict the purchase of Securities in connection with a Securitization of the Loan (or any portion thereof or interest therein) by a Prohibited Lender Entity and no such purchase by any Prohibited Lender Entity shall constitute a violation of the provisions of this Agreement.
(b) If requested by Lender, Borrower shall use commercially reasonable efforts to assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or marketplace, by the Rating Agencies or applicable by any Legal Requirements in connection with any Secondary Market TransactionsTransactions (including any Exchange Act Filings or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements), including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, Guarantor and Manager (including, without limitation, the information set forth on Schedule VI attached V hereto), (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Property and (C) provide updated appraisals, market studies, environmental audits, reviews and reports (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in required under clauses (A), (B) and (C) shall hereinafter be referred to collectively as the “Updated Information”), together, if customary, together with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers or opinions of counsel reasonably acceptable to Lender and the Rating Agencies;.
(ii) provide opinions of counsel, which may be relied upon by Lender Lender, any trustee in a Securitization and the NRSROs, NRSROs and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance, and “true sale” or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor and any Affiliate of Borrower or Guarantor, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide provide, and cause to be provided, updated (as of the closing date of any Secondary Market Transaction) representations and warranties made in the Loan Documents and make, and cause to be made, such additional representations and warranties, in each case, consistent with fact, warranties as may be requested by Lender or the Rating Agencies may requireand consistent with the facts covered by such representations and warranties as they exist on the date thereof;
(iv) subject in all cases to the applicable provisions of Section 9.39.3 hereof, execute execute, and cause to be executed, such amendments, replacements or other modifications and amendments to Borrower’s Organizational Documents or the Loan Documents and Borrower’s organizational documents as may be reasonably requested by Lender or and/or the Rating Agencies may require;or otherwise to effect the Secondary Market Transactions.
(v) attend management meetings, provide access to, to the Property and conduct tours of, of the Property; and
(vi) provide certifications provide, and cause to be provided, certificates or other evidence of reliance acceptable satisfactory to Lender and the Rating Agencies with respect to any information or third party reports and other information obtained in connection with the origination of the Loan or any Updated Information from Borrower, Guarantor, any Affiliate of Borrower or Guarantor, Manager and any accountants, appraisers, engineers, environmental assessment experts and other experts or third party providers of such information, reports or Updated Information.
(c) If, at the time one or more Disclosure Documents are being prepared for or in connection with a Securitization, Lender reasonably expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender expects that the principal amount of the Loan together with any Related Loans, as of the cut off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Property and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender expects that the principal amount of the Loan together with any Related Loans, as of the cut off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Property for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Property is the Significant Obligor and the Property (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any tenant of the Property if, in connection with a Securitization, Lender reasonably expects there to be, as of the cut-off date for such Securitization, a concentration with respect to such tenant or group of Affiliated tenants within all of the mortgage loans included or expected to be included in the Securitization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, if requested by Lender, and reasonably required in connection with a Securitization as reasonably determined by Lender, financial data or financial statements with respect to such tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (i) Exchange Act Filings in connection with or relating to the Securitization are required to be made under applicable Legal Requirements or (ii) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of any Borrower collectively, or the Property alone or the Property and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, if requested by Lender, and reasonably required in connection with a Securitization as reasonably determined by Lender, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (i) Exchange Act Filings are required to be made under applicable Legal Requirements or (ii) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) Any financial data or financial statements provided pursuant to this Section 9.1 shall be furnished to Lender within the following time periods:
(i) with respect to information requested in connection with the preparation of Disclosure Documents for a Securitization, within ten (10) Business Days after notice from Lender; and
(ii) with respect to information required under Sections 9.1(d) and (e) above, (A) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (B) not later than seventy-five (75) days after the end of each Fiscal Year of Borrower.
(g) All financial data and financial statements provided by Borrower hereunder pursuant to Sections 9.1(c), (d), (e) and (f) hereof shall be prepared in accordance with GAAP, and shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and any and all other applicable Legal Requirements. All financial statements relating to a Fiscal Year shall be audited by independent accountants of Borrower reasonably acceptable to Lender in accordance with generally accepted auditing standards, Regulation S-X or Regulation S-K, as applicable, Regulation AB, and all other applicable Legal Requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and all other applicable Legal Requirements, and shall be further accompanied by a manually executed consent of the independent accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document, any Exchange Act Filing or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document, any Exchange Act Filing or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements, all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial data and financial statements (audited or unaudited) provided by Borrower shall be accompanied by an Officer’s Certificate which shall state that such financial data and financial statements meet the requirements set forth in the first sentence of this paragraph.
(h) In the event Lender reasonably determines, in connection with a Securitization, that financial statements and financial data required in order to comply with Regulation AB or any amendment, modification or replacement thereto or any other Legal Requirements are other than as provided herein, then notwithstanding the foregoing provisions of this Section 9.1, Lender may request, and Borrower shall promptly provide, such other financial statements and financial data as Lender reasonably determines to be necessary or appropriate for such compliance.
(i) Without limiting the generality of Section 9.1(h) above, if reasonably requested by Lender, Borrower shall promptly provide Lender with any financial statements or financial, statistical, operating or other information as Lender shall reasonably determine to be required pursuant to Regulation AB or any amendment, modification or replacement thereto or any other Legal Requirements in connection with any Disclosure Document, any Exchange Act Filing or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements or as shall otherwise be reasonably requested by Lender.
(j) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property or any aspect of the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (includingthe parties requesting such information and, but not limited to, investors or prospective investors in the Securitiesif applicable, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved NRSROs in or related to connection with any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) Transaction. Borrower also understands that the findings and conclusions of any third-party due diligence report obtained by Lender or other Securitization Indemnified Persons Parties may be made publicly available if required, and in the manner prescribed, by Section 15E(s)(4)(A) of the Exchange Act, any rules promulgated thereunder or any other applicable Legal Requirements.
(dk) If requested by In connection with Lender, Borrower shall use commercially reasonable ’s efforts to provide Lendereffect any Secondary Market Transaction, promptly upon requestall reasonable out-of pocket third party costs and expenses actually incurred by Borrower, with any financial statements, financial, statistical Guarantor or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements their respective Affiliates pursuant to the Securities Act this Section 9.1 (including, but not limited to, Regulation AB)without limitation, the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any fees and expenses of the foregoingRating Agencies) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise such Secondary Market Transaction shall be reasonably requested reimbursed by Lender, and Borrower shall not be responsible for any of Lender’s costs incurred in connection with any such Secondary Market Transaction.
Appears in 1 contract
Samples: Loan Agreement (KBS Strategic Opportunity REIT, Inc.)
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizations. securitization (The the transactions referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. .” Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”).
(b) If requested by Lender, for so long as the Loan is outstanding, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts toTransaction:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Borrower and the Manager (if an Affiliate of Borrower or Guarantorand, includingif not an Affiliate of Borrower, without limitation, the only such information set forth on Schedule VI attached heretoas is reasonably requested by Lender and within Borrower’s possession), (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriaterecommended by Phase I’s, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and the NRSROs, and their respective counsel, agents and representativesRating Agencies, as to bankruptcy non-consolidation, fraudulent conveyance, and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor Property and any Affiliate of Borrower or Guarantorand Affiliates, which counsel and opinions shall be reasonably satisfactory to Lender and satisfactory to the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;require and consistent with the facts covered by the representations and warranties contained in this Agreement; and
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender reasonably requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) change the interest rate, the stated maturity or the Rating Agencies may require;
amortization of principal as set forth herein or in the Note, (vB) provide access to, and conduct tours of, the Property; and
(vi) provide certifications modify or amend any other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination economic term of the Loan or (C) otherwise increase the obligations or decrease the rights of Borrower under the Loan Documents. Notwithstanding the foregoing, Lender shall (unless Borrower shall otherwise be required to deliver any Updated Informationof the foregoing under another provision of this Agreement at its cost and expense) (x) pay the costs and expenses incurred by Lender with respect to the issuance of any Securities and any other costs and expenses incurred by Lender in connection with a Secondary Market Transaction and (y) reimburse Borrower for all reasonable third party fees and costs (including the reasonable fees and disbursements of Borrower’s attorneys and accountants) actually incurred by Borrower in connection with Borrower’s cooperation with Lender pursuant to this Section 9.1(b).
(c) If requested by Lender, Borrower agrees that shall provide Lender with the following financial statements:
(i) If, at the time a Disclosure Document is being prepared for a Securitization, Lender may disclose any information expects that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Property alone or the Property and Related Property collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request (x) the selected financial data relating to Borrower, its Affiliates, Borrower or the Property or, if applicable, Net Operating Income, required under Item 1112(b)(1) of Regulation AB, if Lender expects that the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization does, equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included, as applicable, in the Securitization or (y) the financial statements relating to Borrower or the Property required under Item 1112(b)(2) of Regulation AB, if Lender expects that the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization does, equal or exceed twenty percent (including information provided by 20%) of the aggregate principal amount of all mortgage loans included or on behalf expected to be included, as applicable, in the Securitization. Such financial data or financial statements shall be furnished to Lender (A) within ten (10) Business Days (or, if an audit is required, thirty (30) Business Days) after notice from Lender in connection with the preparation of Disclosure Documents for the Securitization, (B) not later than forty (40) days after the end of each fiscal quarter of Borrower and (C) not later than eighty-five (85) days after the end of each Fiscal Year of Borrower; provided, however, that Borrower shall not be obligated to furnish financial data or any financial statements pursuant to clauses (B) or (C) of its Affiliates to Lender) this sentence with respect to any Person (including, but not limited to, investors period for which a filing pursuant to the Exchange Act in connection with or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitizationthe Securitization (an “Exchange Act Filing”) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if is not required, and in the manner prescribed, by applicable Legal Requirements.
(d) . If requested by Lender, Borrower shall use commercially reasonable efforts to obtain and deliver to Lender financial data and/or financial statements for any tenant of the Property if, in connection with a Securitization, Lender expects there to be, with respect to such tenant or group of affiliated tenants, a concentration within all of the mortgage loans included or expected to be included, as applicable, in the Securitization such that such tenant or group of affiliated tenants would constitute a Significant Obligor.
(ii) All financial data and financial statements provided by Borrower hereunder pursuant to this Section 9.1(c) shall meet the requirements of Regulation AB and other applicable legal requirements. All financial statements referred to in Section 9.1(c)(i)(y) above shall be audited by independent accountants of Borrower reasonably acceptable to Lender in accordance with Regulation AB and all other applicable legal requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation AB and all other applicable legal requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in form and substance reasonably acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and, if available to Borrower on a commercially reasonable basis, to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial data and financial statements (i.e., unaudited) provided by Borrower pursuant to this Section 9.1(c) shall be accompanied by an Officer’s Certificate stating the financial information attached thereto is true, accurate and complete in all material respects, but with no obligation to certify as to compliance with Regulation AB. Except when a specific time period is required by Section 9.1(c)(i) through (iv), Borrower shall use commercially reasonable efforts to obtain the documents, data and other information required thereunder.
(iii) If requested by Lender in connection with a Securitization, Borrower shall provide Lender, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information or other information information, as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would in good faith to be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws AB or any amendment, modification or replacement to any of the foregoing) thereto or required by any other Legal Requirements, in each case, legal requirements in connection with any Disclosure Document or any Exchange Act Filing or as may shall otherwise be reasonably requested by LenderLender to meet disclosure or rating agency requirements.
(iv) In the event Lender determines in good faith, in connection with a Securitization, that the financial statements required in order to comply with Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the provisions of Section 9.1(c)(ii) hereof, Lender may request, and Borrower shall promptly provide, such other financial data and financial statements as Lender determines in good faith to be necessary or appropriate for such compliance.
(v) Any reports, statements or other information required to be delivered pursuant to this Section 9.1(c) shall be delivered (i) in paper form, (ii) on a diskette, and (iii) if requested by Lender and within the capabilities of Borrower’s data systems without change or modification thereto, in electronic form and prepared using a Microsoft Word for Windows or WordPerfect for Windows files (which files may be prepared using a spreadsheet program and saved as word processing files). Borrower agrees that Lender may disclose information regarding the Property and Borrower that is provided to Lender pursuant to this Section 9.1(c)(v) in connection with the Securitization to such parties requesting such information in connection with such Securitization. Lender shall (unless Borrower shall otherwise be required to deliver any of the foregoing under another provision of this Agreement at its cost and expense) reimburse Borrower for all reasonable third party fees and costs (including the reasonable fees and disbursements of Borrower’s attorneys and accountants) actually incurred by Borrower in connection with Borrower’s delivery of financial statements and other materials requested by Lender pursuant to this Section 9.1(c).
Appears in 1 contract
Sale of Mortgage and Securitization. Subject to Section 9.4 hereof:
(a) Lender shall have the right without notice to or consent from Borrower or any other Person (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any PersonLoan, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization and (iv) to otherwise assign, participate, assign or transfer the Loan, the Note, the Loan Documents and/or Lender’s rights, title, obligations and interests therein to any Person at any time in its sole and absolute discretion, in whole or in part, whether by operation of law (pursuant to a merger or other successor in interest) or otherwise, but subject to the terms set forth in that certain letter agreement between Lender and Borrower dated as of the date hereof. (Upon such assignment, all references to Lender and Co-Lender in this Agreement and in any Loan Document shall be deemed to refer to such assignee or successor in interest and such assignee or successor in interest shall thereafter stand in the place of Lender in all respects. The transactions referred to in clauses (i), (ii), (iii) and (iiiiv) are each hereinafter referred to as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities or similar instruments issued in connection with a Securitization Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If reasonably requested by Lender, Borrower shall (at no cost or expense to Borrower, except to the extent otherwise expressly provided for in Section 9.4) assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or marketplace, by prospective investors, the Rating Agencies or and/or by applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts to:
(i) (A) provide updated reasonably requested, non-confidential financial and other information (other than projections) with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantorand the Manager, including, without limitation, the information set forth on Schedule VI Exhibit B attached hereto, in each case, to the extent reasonably available to Borrower or Manager, (B) provide updated budgets and rent rolls relating to the Property (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property), and (C) provide such financial information and statements as are required pursuant to this Section 9.1(b)(i) (the information described in clauses (A) through (C), the “Provided Information”) and (D) cooperate with Lender in obtaining updated appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’sIIs), property condition reports and other due diligence investigations of the Property (the information referred Property, subject to in clauses (A), (B) Borrower’s reasonable and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers or opinions of counsel acceptable to Lender customary safety requirements and the Rating Agenciesrights of Tenants under Leases;
(ii) use commercially reasonable efforts to provide customary updates or customary modifications to the opinions of counselcounsel provided by Borrower at Closing, which as may be relied upon reasonably requested by Lender and in order to effect the NRSROsrelated Securitization, and their respective counselincluding without limitation updates or modifications requested by or for the benefit of the Rating Agencies, agents and representativesunderwriters, as placement agents, the trustee or other customary Securitization parties (it being agreed that in no event shall Borrower be obligated to bankruptcy non-consolidation, or any other deliver an opinion customary of counsel with respect to loans comparable to the Loan in size and character in Secondary Market Transactions “true sale”, “fraudulent conveyance” or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor and any Affiliate of Borrower or Guarantor, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;“10b-5” matters); and
(iii) provide updated (updated, as of the closing date of any Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warrantieswarranties as the Rating Agencies may require (which, in each case, consistent with fact, as Lender or the Rating Agencies may require;
(iv) be given subject to Section 9.3, any additional exceptions thereto) and execute modifications and such amendments to the Loan Documents and Borrower’s organizational documents as may be reasonably requested by Lender in order to effect the related Securitization, provided that nothing in such amendments shall result in any economic or other change that is adverse in any respect to Borrower or any Affiliate thereof or result in any operational changes that are burdensome to Borrower or the Rating Agencies may require;
(v) provide access to, and conduct tours of, the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained Property in connection with the origination of the Loan or any Updated Informationmaterial respect.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably expects that Borrower agrees that alone or Borrower and one or more Affiliates of Borrower, collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon reasonable request the following financial information, in each case, to the extent reasonably available to Borrower or Manager:
(i) if Lender reasonably expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may disclose any information relating equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to Borrowerbe included in the Securitization, its Affiliates, net operating income for the Property or and the Loan Related Properties as required under Item 1112(b)(1) of Regulation AB (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting it being understood that such information and shall be deemed “required” whether or not the Securities are being offered in a registered offering), or
(ii) if Lender reasonably expects that the findings principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (it being understood that such information shall be deemed “required” whether or not the Securities are being offered in a registered offering).
(d) In the event all or a portion of the Loan is included in a securitization involving a registered public offering of Securities pursuant to the Securities Act (a “Public Securitization”), and conclusions if Lender determines that Borrower alone or Borrower and one or more Affiliates of any third-party due diligence report obtained Borrower collectively, or the Property alone or the Property and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender Lender, but only for so long as such entity or other Indemnified Persons may entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made publicly available if required, and in under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the manner prescribed, by Securities under Regulation AB or applicable Legal Requirements.
(de) Any financial data or financial statements provided pursuant to this Section 9.1 shall be furnished to Lender within the following time periods:
(i) with respect to information requested in connection with the preparation of Disclosure Documents for a Securitization, as promptly as reasonably practicable following notice from Lender; and
(ii) with respect to ongoing information required under Section 9.1(d) above, (1) not later than forty-one (41) days after the end of each calendar quarter of Borrower and (2) not later than eighty-five (85) days after the end of each fiscal year of Borrower. Any reasonable incremental costs and expenses incurred by Borrower in connection with the delivery to Lender of any financial data or financial statements within the time periods set forth in Section 9.1(e)(ii) rather than the time periods provided in Section 4.9 and/or in the form required pursuant to Section 9.1(d) rather than in the form required in Section 4.9, shall be paid by Lender.
(f) If requested by Lender, Borrower shall use commercially reasonable efforts to provide Lender, as promptly upon requestas reasonably practicable following Lender’s request therefor, and in any event, within the time periods required to comply with Regulation AB or other Legal Requirements relating to a Securitization (but no earlier than three (3) Business Days following notice from Lender) with any other or additional financial statements, or financial, statistical or operating information or other information information, as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would to be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) thereto or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing Requirements relating to a Securitization or as may shall otherwise be reasonably requested by the Lender.
(g) All financial statements provided by Borrower pursuant to this Section 9.1 shall be prepared in accordance with GAAP, and shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and other applicable Legal Requirements. All annual financial statements shall be audited by Independent Accountants in accordance with GAAP, Regulation S-X or Regulation S-K, as applicable, Regulation AB, and all other applicable Legal Requirements and shall be accompanied by a manually executed written consent of the Independent Accountants, in form and substance reasonably acceptable to Lender and the Independent Accountants, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such Independent Accountants and the reference to such Independent Accountants as “experts” in any Disclosure Document and Exchange Act Filing (or comparable information is required to otherwise be available to holders of the Securities under Regulation AB or applicable Legal Requirements), all of which shall be provided at the same time as the related financial statements are required to be provided. All other data and financial statements provided by Borrower pursuant to this Section 9.1 shall be accompanied by an Officers Certificate of Borrower stating that such financial statements meet the requirements set forth in the first sentence of this Section 9.1(g).
(h) Lender or its designee, which may include (1) any Co-Lender or Servicer, as a non-fiduciary agent of Borrower, or (2) Borrower (such Lender or its designee, the “Registrar”), shall maintain a copy of each Loan assignment agreement delivered to Registrar and a register for the recordation of the name and address of each Co-Lender, and each Co-Lender’s rights to principal and stated interest of the Loan owing to such Co-Lender (the “Register”). The entries in the Register shall be conclusive absent manifest error (which, for the avoidance of doubt, shall include a failure to record, or error in recording, any assignment of the Loan of which Registrar is given notice), and Borrower and each Co-Lender shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Co-Lender hereunder for all purposes of this Agreement. The parties intend for the Loan to be in registered form for tax purposes under U.S. Department of Treasury Regulation Section 5f.103-1(c). If the Registrar is not Borrower, then upon the request of Borrower, Lender shall inform Borrower as to which Co-Lender or other designee is the Registrar. Upon request of a Co-Lender or a Borrower and reasonable prior notice, the Registrar shall provide to such requesting person any information reasonably requested by such person that is recorded on such Register.
(i) Each Co-Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loan or other obligations under the Loan Documents (the “Participant Register”); provided that no Co-Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the U.S. Department of Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Co-Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Borrower shall have no responsibility for maintaining a Participant Register. Borrower agrees that each participant shall be entitled to the benefits of Sections 2.9.1 and 2.9.2 (subject to the requirements and limitations therein) to the same extent as if it were a Co-Lender under this Agreement.
Appears in 1 contract
Samples: Loan Agreement (Alexanders Inc)
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions transaction referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. .” Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”).
(b) If requested by Lender, at no out-of-pocket cost or additional liability to Borrower, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, and the information set forth on Schedule VI attached hereto, Manager and (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of Property to the Property (extent otherwise required by the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers or opinions of counsel acceptable to Lender and the Rating AgenciesLoan Documents;
(ii) if required by the Rating Agencies, provide revised opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, or any other opinion customary with respect to loans comparable to the Loan in size due execution and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction enforceability with respect to the Property, Borrower, Guarantor and any Affiliate of Borrower or Guarantor, which counsel and opinions shall be satisfactory to Lender and the Rating AgenciesLoan Documents;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents as are customarily provided in securitization transactions and such additional representations and warranties, in each case, consistent with fact, as Lender may be reasonably requested by the holder of the Note or the Rating Agencies may require;and consistent with the facts covered by such representations and warranties made in the Loan Documents to the extent they are true as of the time of the closing of the Securitization; and
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender or the Rating Agencies may require;
(v) provide access to, and conduct tours of, the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(c) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements.
(d) If requested by Lender, provided, however, that Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would not be required to modify or amend any Loan Document if such modification or amendment would (A) change the Securities issued interest rate, the stated maturity or the amortization of principal as set forth herein or in connection with a Securitization were offered publiclythe Note, (B) to satisfy modify or amend any and all disclosure requirements economic or any other material term of the Loan, (C) otherwise materially increase the obligations or decrease the rights of Borrower pursuant to the Securities Act Loan Documents or (includingD) impose any additional personal liability on any Constituent Partner (as hereinafter defined) of Borrower, but not limited toGuarantor or their respective Affiliates. All financial statements provided by Borrower pursuant to this Section 9.1(c) shall be prepared in accordance with GAAP, Regulation AB), the Exchange Act, any and shall meet other applicable securities laws or any amendment, modification or replacement Legal Requirements. All financial statements relating to any of a Fiscal Year shall be audited by the foregoing) or required by any independent accountants in accordance with generally accepted auditing standards and all other applicable Legal Requirements, in each caseshall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements and all other applicable Legal Requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in connection with form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document or and any Exchange Act Filing or and to the use of the name of such independent accountants and the reference to such independent accountants as may otherwise “experts” in any Disclosure Document and Exchange Act Filing, all of which shall be reasonably requested provided at the same time as the related financial statements are required to be provided. All other financial statements shall be certified by Lenderthe chief financial officer of Borrower, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this paragraph.
Appears in 1 contract
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions transaction referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. .” Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities.”).
(b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Individual Property, the business operated at the Individual Property, Borrower and, to the extent reasonably available to Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, the information set forth on Schedule VI attached heretoeach Manager, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Individual Property and (C) at Lender’s expense provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Individual Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance, and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor Individual Property and any Affiliate of Borrower or Guarantorand Affiliates, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, warranties substantially similar to the representations and warranties contained in each case, consistent with fact, the Loan Documents as Lender or the Rating Agencies may require;; and
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and the Guaranty Security Documents and Borrower’s organizational documents reasonably requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) change the interest rate, the stated maturity or the amortization of principal as Lender set forth herein or in the Note, (B) modify or amend any other material economic term of the Loan, or (C) materially decrease the rights or materially increase the obligations of the Borrower. Any reports, statements or other information required to be delivered under this Section 9.1 shall be delivered in paper form or transmitted electronically in PDF or other similar format or Borrower may deliver such reports, statements and other information (A) on a diskette, or (B) in electronic form and prepared using Microsoft Word for Windows or WordPerfect for Windows files (which files may be prepared using a spreadsheet program and saved as word processing files), provided, that, delivery of such reports, statements and other information in such formats shall be subject to Borrower’s satisfaction of the reporting and delivery obligations and requirements of the Servicer. Notwithstanding the foregoing, Borrower shall be required to deliver original opinions, agreements, amendments, certificates of the Borrower or its Affiliates, and title insurance policies or endorsements, and Borrower shall be required to deliver originals of any other agreements, documents, certificates and reports if such originals are reasonably requested by Lender, the Servicer or the Rating Agencies may require;
(v) provide access to, and conduct tours of, the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(c) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements.
(d) If requested by Lender, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items otherwise required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably requested by LenderLoan Documents.
Appears in 1 contract
Samples: Loan Agreement (Wells Real Estate Investment Trust Inc)
Sale of Mortgage and Securitization. (a) Lender shall have the right right, at Lender’s cost and without the consent of Borrower, any Guarantor or any Affiliate of Borrower or any Guarantor, (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any PersonLoan, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions. Lender agrees to reasonably consult with Borrower with respect to the structure of any Securitization that includes the Loan.
(b) If requested by Lender, Borrower and Operating Lessee shall use commercially reasonable efforts to and shall cause Guarantors to use commercially reasonable efforts to assist Lender Lender, at Lender’s expense, in satisfying the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts toand shall in any event upon Lender’s request, at Lender’s expense:
(i) (A) provide updated financial and other customary information with respect to the PropertyProperties, the business operated at the PropertyProperties, Borrower, Guarantor, any Affiliate of Borrower or GuarantorOperating Lessee and each Manager, including, without limitation, the information set forth on Schedule VI Exhibit B attached hereto, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenanttenant) relating to the PropertyProperties, and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property Properties (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) cause counsel to provide legal opinions of counsel, which may be relied upon by Lender and the NRSROsLender, trustee in any Securitization, underwriters, NRSROs and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, or matters of Delaware and federal bankruptcy law relating to limited partners and/or limited liability companies, any other opinion customary with respect matters covered in the opinions delivered to loans comparable to the Loan in size and character in Secondary Market Transactions Lender at Closing or as required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the PropertyProperties, Borrowerthe Loan Documents, Guarantor and any Affiliate of Borrower or Guarantorand Operating Lessee and their respective Affiliates, which counsel and opinions shall be reasonably satisfactory to Lender and satisfactory to the Rating Agencies;; and
(iii) provide updated (as of the closing date of any Secondary Market Transaction) representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, as Lender or the Rating Agencies may require;
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s and Operating Lessee’s organizational documents as Lender requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the Rating Agencies may require;
initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (vB) provide access tocause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, and conduct tours of(C) require Borrower to make or remake any representations or warranties, the Property; and
(viD) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Updated InformationGuarantor under the Loan Documents other than to a de minimis extent.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender expects that Borrower agrees alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall, at Lender’s expense, furnish to Lender upon reasonable request the following financial information:
(i) if Lender reasonably expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may disclose equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably expects that the principal amount of the Loan together with any information relating Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to Borrower, its Affiliatesbe included in the Securitization, the Property or financial statements in respect of the Loan Properties required under Item 1112(b)(2) of Regulation AB (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (includingwhich includes, but may not be limited to, investors a balance sheet with respect to the entity that Lender reasonably determines to be a Significant Obligor) for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X.
(d) Further, if reasonably requested by Lender, Borrower shall, promptly at Lender’s expense, furnish to Lender financial data or prospective investors financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any tenant of any Individual Property (if available and not subject to requirements of confidentiality under the terms of the applicable Lease) if, in connection with a Securitization, Lender expects there to be, as of the cutoff date for such Securitization, a concentration with respect to such tenant or group of Affiliated tenants within all of the mortgage loans included or expected to be included in the SecuritiesSecuritization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor. Borrower shall, at Lender’s expense, use commercially reasonable efforts to furnish to Lender, in connection with the NRSROspreparation of the Disclosure Documents and on an ongoing basis, investment banking firmsfinancial data and/or financial statements with respect to such tenants meeting (if available and not subject to requirements of confidentiality under the terms of the applicable Lease) the requirements of Item 1112(b)(1) or (2) of Regulation AB, accounting firmsas specified by Lender, law firms but only for so long as such entity or entities are a Significant Obligor and other third-party advisory and service providers either (x) filings pursuant to the Exchange Act in connection with or relating to a Securitizationthe Securitization (an “Exchange Act Filing”) actually or potentially involved in or related are required to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the manner prescribed, by Securities under Regulation AB or applicable Legal Requirements.
(de) If Lender reasonably determines in good faith that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall, at Lender’s expense, furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) Any financial data or financial statements provided pursuant to this Section 9.1 shall be furnished at Lender’s expense to Lender within the following time periods:
(i) with respect to information requested in connection with the preparation of Disclosure Documents for a Securitization, within ten (10) Business Days after notice from Lender; and
(ii) with respect to ongoing information required under Section 9.1(d) and (e) above, (1) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (2) not later than seventy-five (75) days after the end of each Fiscal Year of Borrower.
(g) If reasonably requested by Lender, Borrower shall, at Lender’s expense, provide Lender, promptly following Lender’s reasonable request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements identified by Lender and relating to a Securitization or as shall otherwise be reasonably requested by Lender or, in the case of a private securitization such statements or information as Lender shall reasonably determine to be necessary to be included.
(h) If requested by Lender, whether in connection with a Securitization or at any time thereafter during which the Loan and any Related Loans are included in a Securitization, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate a list of tenants (including items required all affiliates of such tenants) that in the aggregate (1) occupy 10% or more (but less than 20%) of the total floor area of the improvements or represent 10% or more (but less than 20%) of aggregate base rent, and (2) occupy 20% or more of the total floor area of the improvements or represent 20% or more of aggregate base rent.
(i) All financial statements provided by Borrower or Operating Lessee pursuant to this Section 9.1(c), (d), (e) or (f) shall be prepared in accordance with the Uniform System of Accounts and reconciled in accordance with GAAP (or items that would otherwise in accordance with an Acceptable Accounting Method) and shall meet the applicable requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and other applicable Legal Requirements. All financial statements provided by Borrower pursuant to clause (c) or (d) relating to a Fiscal Year shall be audited by Independent Accountants in accordance with GAAP, Regulation S-X or Regulation S-K, as applicable, Regulation AB, and all other applicable Legal Requirements, shall be accompanied by the manually executed report of the Independent Accountants thereon, which report shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and all other applicable Legal Requirements, and shall be further accompanied by a manually executed written consent of the Independent Accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such Independent Accountants and the reference to such Independent Accountants as “experts” in any Disclosure Document and Exchange Act Filing (or comparable information is required if to otherwise be available to holders of the Securities issued under Regulation AB or applicable Legal Requirements), all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial statements of the Borrower shall be certified by the chief financial officer of Borrower, which certification shall state that such financial statements meet the requirements set forth in connection with the first sentence of this paragraph.
(j) If reasonably requested by Lender, Borrower shall review any information regarding the Properties, tenants, Borrower, Operating Lessee and Guarantors which is contained in any Disclosure Document (including any interim drafts thereof and any amendments or supplements thereto) in order to confirm that to its knowledge, no such Disclosure Document contains any untrue statement of a Securitization material fact or omits any material fact necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading, and to the extent any such Disclosure Document contains any such material misstatements or omissions to correct any such material misstatements or omissions within five (5) Business Days following Borrower’s receipt thereof. Borrower shall not be liable hereunder for any material misstatement or omission contained in the Disclosure Document due to Lender’s failure to incorporate Borrower’s requested changes or modifications.
(k) For all purposes under this Agreement, if any Securities are offered publicly) to satisfy any and all disclosure requirements pursuant to a “private” Securitization pursuant to an exemption under Rule 144A or Regulation D under the Securities Act, the provisions of Regulation AB, Regulation S-K, Regulation S-X and any other disclosure provisions of the Securities Act (including, but not limited to, Regulation AB), the and/or Exchange Act, as applicable, shall be deemed to apply to such “private” Securitization as if such offering of Securities were being conducted pursuant to a registered public offering under the Securities Act.
(l) Notwithstanding anything contained herein, Borrower shall have the right, at its option, to hold or designate the holder of any other applicable securities laws non-call protected interest only bonds (or any amendment, modification or replacement to any of the foregoingtheir economic equivalent) or required by any other Legal Requirements, in each case, for no consideration ($0.00) in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably requested by LenderSecuritization.
Appears in 1 contract
Sale of Mortgage and Securitization. Subject to Section 9.4 hereof:
(a) Lender shall have the right without notice to or consent from Borrower or any other Person (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any PersonLoan, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization and (iv) to otherwise assign, participate, assign or transfer the Loan, the Note, the Loan Documents and/or Lender’s rights, title, obligations and interests therein to any Person at any time in its sole and absolute discretion, in whole or in part, whether by operation of law (pursuant to a merger or other successor in interest) or otherwise, but subject to the terms set forth in that certain letter agreement between Lender and Borrower dated as of the date hereof. (Upon such assignment, all references to Lender in this Agreement and in any Loan Document shall be deemed to refer to such assignee or successor in interest and such assignee or successor in interest shall thereafter stand in the place of Lender in all respects. The transactions referred to in clauses (i), (ii), (iii) and (iiiiv) are each hereinafter referred to as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities or similar instruments issued in connection with a Securitization Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If reasonably requested by Lender, Borrower shall (at no cost or expense to Borrower, except to the extent otherwise expressly provided for in Section 9.4) assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or marketplace, by prospective investors, the Rating Agencies or and/or by applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts to:
(i) (A) provide updated reasonably requested, non-confidential financial and other information (other than projections) with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantorand the Manager, including, without limitation, the information set forth on Schedule VI Exhibit B attached hereto, in each case, to the extent reasonably available to Borrower or Manager, (B) provide updated budgets and rent rolls relating to the Property (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property), and (C) provide such financial information and statements as are required pursuant to this Section 9.1(b)(i) (the information described in clauses (A) through (C), the “Provided Information”) and (D) cooperate with Lender in obtaining updated appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’sIIs), property condition reports and other due diligence investigations of the Property (the information referred Property, subject to in clauses (A), (B) Borrower’s reasonable and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers or opinions of counsel acceptable to Lender customary safety requirements and the Rating Agenciesrights of Tenants under Leases;
(ii) use commercially reasonable efforts to provide customary updates or customary modifications to the opinions of counselcounsel provided by Borrower at Closing, which as may be relied upon reasonably requested by Lender and in order to effect the NRSROsrelated Securitization, and their respective counselincluding without limitation updates or modifications requested by or for the benefit of the Rating Agencies, agents and representativesunderwriters, as placement agents, the trustee or other customary Securitization parties (it being agreed that in no event shall Borrower be obligated to bankruptcy non-consolidation, or any other deliver an opinion customary of counsel with respect to loans comparable to the Loan in size and character in Secondary Market Transactions “true sale”, “fraudulent conveyance” or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor and any Affiliate of Borrower or Guarantor, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;“10b-5” matters); and
(iii) provide updated (updated, as of the closing date of any Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warrantieswarranties as the Rating Agencies may require (which, in each case, consistent with fact, as Lender or the Rating Agencies may require;
(iv) be given subject to Section 9.3, any additional exceptions thereto) and execute modifications and such amendments to the Loan Documents and as may be reasonably requested by Lender in order to effect the related Securitization, provided that nothing in such amendments shall result in any economic or other change that is adverse in any respect to Borrower’s organizational documents as Lender , Guarantor or any Affiliate thereof or result in any operational changes that are burdensome to Borrower or the Rating Agencies may require;
(v) provide access to, and conduct tours of, the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained Property in connection with the origination of the Loan or any Updated Informationmaterial respect.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably expects that Borrower agrees that alone or Borrower and one or more Affiliates of Borrower, collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon reasonable request the following financial information, in each case, to the extent reasonably available to Borrower or Manager:
(i) if Lender reasonably expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may disclose any information relating equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to Borrowerbe included in the Securitization, its Affiliates, net operating income for the Property or and the Loan Related Properties as required under Item 1112(b)(1) of Regulation AB (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting it being understood that such information and shall be deemed “required” whether or not the Securities are being offered in a registered offering), or
(ii) if Lender reasonably expects that the findings principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (it being understood that such information shall be deemed “required” whether or not the Securities are being offered in a registered offering).
(d) In the event all or a portion of the Loan is included in a securitization involving a registered public offering of Securities pursuant to the Securities Act (a “Public Securitization”), and conclusions if Lender determines that Borrower alone or Borrower and one or more 113 Affiliates of any third-party due diligence report obtained Borrower collectively, or the Property alone or the Property and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender Lender, but only for so long as such entity or other Indemnified Persons may entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made publicly available if required, and in under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the manner prescribed, by Securities under Regulation AB or applicable Legal Requirements.
(de) Any financial data or financial statements provided pursuant to this Section 9.1 shall be furnished to Lender within the following time periods:
(i) with respect to information requested in connection with the preparation of Disclosure Documents for a Securitization, as promptly as reasonably practicable following notice from Lender; and
(ii) with respect to ongoing information required under Section 9.1(d) above, (1) not later than forty-one (41) days after the end of each calendar quarter of Borrower and (2) not later than eighty-five (85) days after the end of each fiscal year of Borrower. Any reasonable incremental costs and expenses incurred by Borrower in connection with the delivery to Lender of any financial data or financial statements within the time periods set forth in Section 9.1(e)(ii) rather than the time periods provided in Section 4.9 and/or in the form required pursuant to Section 9.1(d) rather than in the form required in Section 4.9, shall be paid by Lender.
(f) If requested by Lender, Borrower shall use commercially reasonable efforts to provide Lender, as promptly upon requestas reasonably practicable following Lender’s request therefor, and in any event, within the time periods required to comply with Regulation AB or other Legal Requirements relating to a Securitization (but no earlier than three (3) Business Days following notice from Lender) with any other or additional financial statements, or financial, statistical or operating information or other information information, as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would to be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) thereto or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing Requirements relating to a Securitization or as may shall otherwise be reasonably requested by the Lender.
(g) All financial statements provided by Borrower pursuant to this Section 9.1 shall be prepared in accordance with GAAP, and shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and other applicable Legal Requirements. All annual financial statements shall be audited by Independent Accountants in accordance with GAAP, Regulation S-X or Regulation S-K, as applicable, Regulation AB, and all other applicable Legal Requirements and shall be accompanied by a manually executed written consent of the Independent Accountants, in form and substance reasonably acceptable to Lender and the Independent Accountants, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such Independent Accountants and the reference to such Independent Accountants as “experts” in any Disclosure Document and Exchange Act Filing (or comparable information is required to otherwise be available to holders of the Securities under Regulation AB or applicable Legal Requirements), all of which shall be provided at the same time as the related financial statements are required to be 114
Appears in 1 contract
Samples: Loan Agreement (Alexanders Inc)
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “Secondary Market Transaction” "SECONDARY MARKET TRANSACTIONS" and the transactions transaction referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. "SECURITIZATION." Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”"SECURITIES").
(b) If requested by Lender, at not material cost to Borrower, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, and the information set forth on Schedule VI attached heretoManager, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s 's and, if appropriate, Phase II’s's), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”"UPDATED INFORMATION"), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, consolidation or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor Property and any Affiliate of Borrower or Guarantorand Affiliates, which counsel and opinions shall be reasonably satisfactory to Lender and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;
(iv) subject to Section 9.3, execute modifications and such amendments to the Loan Documents and Borrower’s 's organizational documents reasonably requested by Lender, including, without limitation, amending the Monthly Payment Date, the execution of one or more replacement loan agreements, as may be requested by Lender or the Rating Agencies to effect the Securitization and/or deliver one or more new component notes to replace the original note or modify the original note to reflect multiple components of the Loan (and such new notes or modified note shall have the same initial weighted average coupon of the original note, but such new notes or modified note may require;change the interest rate, Monthly Payment Date and amortization of the Loan), and modify the Cash Management Agreement with respect to the newly created components such that the pricing and marketability of the Securities and the size of each class of Securities and the rating assigned to each such class by the Rating Agencies shall provide the most favorable rating levels and achieve the optimum rating levels for the Loan; provided, however, any such amendments or agreements will not result in an economic change in the Loan terms and will not materially alter the payment terms set forth in this Agreement or the other Loan Documents or materially and adversely affect Borrower or impose additional material obligations or liabilities upon Borrower; and
(v) provide access to, attend management meetings and conduct tours of, of the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(c) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements.
(d) If requested by Lender, Borrower shall use commercially reasonable efforts to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably requested by Lender.
Appears in 1 contract
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan as a whole loan or sell or otherwise transfer any portion thereof or any interest therein to any Persontherein, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or any interest therein in one or more private or public single asset or pooled loan securitizations. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions transaction referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. .” Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities.”).
(b) If requested by Lender, Borrower shall use reasonable efforts to assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or marketplace, by the Rating Agencies or applicable by any Legal Requirements in connection with any Secondary Market TransactionsTransactions (including any Exchange Act Filings or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements), including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Operating Lessee, Guarantor, any Affiliate of Borrower or Borrower, Operating Lessee, Guarantor, and Manager (including, without limitation, the information set forth on Schedule VI attached IX hereto), (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, Property and (C) provide updated appraisals, market studies, environmental audits, reviews and reports (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in required under clauses (A), (B) and (C) shall hereinafter be referred to collectively as the “Updated Information”), together, if customary, together with reasonably appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, NRSROs and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance, and “true sale” or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Operating Lessor, Guarantor and any Affiliate of Borrower or Guarantor, which counsel and opinions shall be reasonably satisfactory to Lender and the Rating Agencies, provided, that, any opinion in substantially the same form and from the same counsel as provided in connection with the closing of the Loan shall be deemed satisfactory to Lender;
(iii) provide provide, and cause to be provided, updated (as of the closing date of any Secondary Market Transaction) representations and warranties made in the Loan Documents and make, and cause to be made, such additional representations and warrantieswarranties as may be requested by Lender, in each caseits reasonable discretion, consistent with fact, as Lender or the Rating Agencies may requireAgencies, in their sole discretion, and consistent with the facts covered by such representations and warranties as they exist on the date thereof;
(iv) subject execute, and cause to Section 9.3be executed, execute such amendments, replacements or other modifications and amendments to Borrower’s Organizational Documents or the Loan Documents and Borrower’s organizational documents as may be reasonably requested by Lender or required by the Rating Agencies and reasonably necessary to effect the Secondary Market Transactions; provided, however, that Borrower shall not be required to amend, restate or otherwise modify any Loan Document if such amendment, restatement or other modification would (A) change the calculation of the LIBOR Interest Rate or increase the initial weighted average interest rate or change the amortization of principal set forth herein or in the Note (except that the weighted average interest rate or the amortization of principal may requiresubsequently change due to involuntary prepayments, the effect of floating interest rates, or if an Event of Default shall occur) or (B) amend or otherwise modify any other material economic term or other material term of the Loan Documents;
(v) upon reasonable advance notice, attend management meetings, provide access to, to the Property and conduct tours of, of the Property, subject to the rights of occupants thereof; and
(vi) provide certifications provide, and cause to be provided, certificates or other evidence of reliance acceptable reasonably satisfactory to Lender and the Rating Agencies with respect to any information or third party reports and other information obtained in connection with the origination of the Loan or any Updated Information from Borrower, Guarantor, any Affiliate of Borrower or Guarantor, Manager and any accountants, appraisers, engineers, environmental assessment experts and other experts or third party providers of such information, reports or Updated Information.
(c) If, at the time one or more Disclosure Documents are being prepared for or in connection with a Securitization, Lender expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Property and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Property for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Property is the Significant Obligor and the Property (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any tenant of the Property if, in connection with a Securitization, Lender expects there to be, as of the cut-off date for such Securitization, a concentration with respect to such tenant or group of Affiliated tenants within all of the mortgage loans included or expected to be included in the Securitization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, if requested by Lender, and reasonably required in connection with a Securitization as reasonably determined by Lender, financial data or financial statements with respect to such tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (i) Exchange Act Filings in connection with or relating to the Securitization are required to be made under applicable Legal Requirements or (ii) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of any Borrower collectively, or the Property alone or the Property and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, if requested by Lender, and reasonably required in connection with a Securitization as reasonably determined by Lender, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (i) Exchange Act Filings are required to be made under applicable Legal Requirements or (ii) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) Any financial data or financial statements provided pursuant to this Section 9.1 shall be furnished to Lender within the following time periods:
(i) with respect to information requested in connection with the preparation of Disclosure Documents for a Securitization, within ten (10) Business Days after notice from Lender; and
(ii) with respect to information required under Sections 9.1(d) and (e) above, (A) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (B) not later than eighty (80) days after the end of each Fiscal Year of Borrower.
(g) All financial data and financial statements provided by Borrower hereunder pursuant to Sections 9.1(c), (d), (e) and (f) hereof shall be prepared in accordance with GAAP, and shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and any and all other applicable Legal Requirements. All financial statements relating to a Fiscal Year shall be audited by independent accountants of Borrower acceptable to Lender in accordance with generally accepted auditing standards, Regulation S-X or Regulation S-K, as applicable, Regulation AB, and all other applicable Legal Requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and all other applicable Legal Requirements, and shall be further accompanied by a manually executed consent of the independent accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document, any Exchange Act Filing or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document, any Exchange Act Filing or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements, all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial data and financial statements (audited or unaudited) provided by Borrower shall be accompanied by an Officer’s Certificate which shall state that such financial data and financial statements meet the requirements set forth in the first sentence of this paragraph.
(h) In the event Lender reasonably determines, in connection with a Securitization, that financial statements and financial data required in order to comply with Regulation AB or any amendment, modification or replacement thereto or any other Legal Requirements are other than as provided herein, then notwithstanding the foregoing provisions of this Section 9.1, Lender may request, and Borrower shall promptly provide, such other financial statements and financial data as Lender reasonably determines to be necessary or appropriate for such compliance.
(i) Without limiting the generality of Section 9.1(h) above, if reasonably requested by Lender, Borrower shall promptly provide Lender with any financial statements or financial, statistical, operating or other information as Lender shall determine to be required pursuant to Regulation AB or any amendment, modification or replacement thereto or any other Legal Requirements in connection with any Disclosure Document, any Exchange Act Filing or any report that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements or as shall otherwise be reasonably requested by Lender.
(j) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Operating Lessee, their Affiliates, the Property or any aspect of the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (includingthe parties requesting such information and, but not limited to, investors or prospective investors in the Securitiesif applicable, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved NRSROs in or related to connection with any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) Transaction. Borrower also understands that the findings and conclusions of any third-party due diligence report obtained by Lender or other Securitization Indemnified Persons Parties may be made publicly available if required, and in the manner prescribed, by Section 15E(s)(4)(A) of the Exchange Act, any rules promulgated thereunder or any other applicable Legal Requirements.
(dk) If requested by Lender, Borrower shall use commercially reasonable efforts Subject to provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each caseSection 9.2 hereof, in connection with Lender’s efforts to effect any Disclosure Document Secondary Market Transaction, all reasonable third party costs and expenses incurred by Borrower and Guarantor (and any of their Affiliates) on or prior to the closing of such Secondary Market Transaction pursuant to this Section 9.1 (including, without limitation, the fees and expenses of the Rating Agencies) shall be reimbursed by Lender (and for the avoidance of doubt, Lender shall be responsible for all of its fees and expenses in connection with any Exchange Act Filing or as may otherwise Secondary Market Transaction).
(l) Within a reasonable period of time after the closing of the Secondary Market Transaction, following Borrower’s written request, Lender shall endeavor to notify Borrower and Operating Lessee of the location of the corporate trust office of the Trustee and location of the servicing offices of the Servicer, which locations shall be reasonably requested by Lenderdeemed the locations for purposes of the definition of “Business Day” provided for in Section 1.1 of this Agreement.
Appears in 1 contract
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any PersonLoan, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or marketplace, by prospective investors, the Rating Agencies or Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including using commercially reasonable efforts to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantorand the Manager, including, without limitation, the information set forth on Schedule VI Exhibit B attached hereto, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, and (C) provide updated appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating AgenciesAgencies and reasonably acceptable to Lender;
(ii) provide opinions of counsel, which may be relied upon by Lender and the NRSROsLender, trustee in any Securitization, underwriters, NRSROs and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrowerthe Loan Documents, Guarantor and any Affiliate of Borrower or Guarantorand its Affiliates, which counsel and opinions shall be satisfactory acceptable to Lender and the Rating AgenciesAgencies and reasonably acceptable to Lender;
(iii) provide updated (updated, as of the closing date of any Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;; and
(iv) subject (A) review any Disclosure Document or any interim draft thereof furnished by Lender to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender or the Rating Agencies may require;
(v) provide access to, and conduct tours of, the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies Borrower with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(c) Borrower agrees contained therein that (i) was furnished to Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower in connection with the preparation of such Disclosure Document or any in connection with the underwriting or closing of its Affiliates the Loan, including financial statements of Borrower and Guarantor, operating statements and rent rolls with respect to Lender) to any Person (includingthe Property, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (iiB) the findings and conclusions within three (3) Business Days following Borrower’s receipt thereof, provide to Lender in writing any revisions to such Disclosure Document or interim draft thereof necessary or advisable to insure that such reviewed information does not contain any untrue statement of a material fact or omit to state any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirementsmaterial fact necessary to make statements contained therein not misleading.
(dc) If requested If, at the time a Disclosure Document is being prepared for a Securitization, Lender expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by Lendercontract or otherwise to make payments on all or a part of the Loan) collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall use commercially reasonable efforts furnish to provide Lender, promptly Lender upon request, with any request the following financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably requested by Lender.information:
Appears in 1 contract
Sale of Mortgage and Securitization. Subject to Sections 8.4 and 10.26 hereof:
(a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any PersonLoan, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or marketplace, by prospective investors, the Rating Agencies or Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including using commercially reasonable efforts to:
(i) (A) provide updated financial and other information with respect to the each Individual Property, the business operated at the each Individual Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantorand the Manager, including, without limitation, the information set forth on Schedule VI Exhibit B attached hereto, in each case, to the extent reasonably available to Borrower or Manager, provided Borrower shall not be required to provide any financial statements of Manager, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the each Individual Property, and (C) provide assist and cooperate with Lender in obtaining updated appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the each Individual Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide updates to opinions of counselcounsel delivered at closing, which may be relied upon by Lender and the NRSROsLender, trustee in any Securitization, underwriters, NRSROs and their respective counsel, agents and representatives; provided, as that, Borrower shall not be required to bankruptcy non-consolidation, or have its legal counsel deliver “10b-5” opinions in connection with any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor and any Affiliate of Borrower or Guarantor, which counsel and opinions shall be satisfactory to Lender and the Rating AgenciesSecuritization;
(iii) provide updated (updated, as of the closing date of any Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, as Lender or the Rating Agencies may require;Documents; and
(iv) subject (A) review any Disclosure Document or any interim draft thereof furnished by Lender to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender or the Rating Agencies may require;
(v) provide access to, and conduct tours of, the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies Borrower with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(c) Borrower agrees contained therein that (i) was furnished to Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower in connection with the preparation of such Disclosure Document or in connection with the underwriting or closing of the Loan that specifically relate to Borrower, Manager, Guarantor and/or the Property, including financial statements of Borrower and Guarantor, operating statements and rent rolls with respect to the Property, and (B) within three (3) Business Days following Borrower’s receipt thereof, provide to Lender in writing any revisions to such Disclosure Document or interim draft thereof necessary or advisable to insure that such reviewed information does not contain any untrue statement of its a material fact or omit to state any material fact necessary to make statements contained therein not misleading.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to Lendermake payments on all or a part of the Loan) collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Lender shall so notify Borrower and Borrower shall furnish to Lender (if such Securitization is a Public Securitization) upon request the following financial information (but as to the Tenants, to the extent such information is actually received by Borrower):
(i) if Lender reasonably expects that the principal amount of the Loan together with any Person Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (including10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for each Individual Property and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, investors a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Property for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or prospective investors if Lender determines that the Property is the Significant Obligor and the Property (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, to the extent such information is not publicly available and the applicable Lease requires the Tenant thereunder to provide such information, Borrower shall, promptly upon Lender’s request, use commercially reasonable efforts to furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of any Individual Property if, in connection with a Securitization, Lender expects there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of affiliated Tenants within all of the mortgage loans included or expected to be included in the SecuritiesSecuritization such that such Tenant or group of affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the NRSROspreparation of the Disclosure Documents and on an ongoing basis, investment banking firmsfinancial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, accounting firmsas specified by Lender, law firms but only for so long as such entity or entities are a Significant Obligor and other third-party advisory and service providers either (x) filings pursuant to the Exchange Act in connection with or relating to a Securitizationthe Securitization (an “Exchange Act Filing”) actually or potentially involved in or related are required to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the manner prescribed, by Securities under Regulation AB or applicable Legal Requirements.
(de) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Property alone or the Property and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) Any financial data or financial statements provided pursuant to this Section 8.1 shall be furnished to Lender within the following time periods:
(i) with respect to information requested in connection with the preparation of Disclosure Documents for a Securitization, within ten (10) Business Days after notice from Lender; and
(ii) with respect to ongoing information required under Section 8.1(d) and (e) above, (1) not later than forty-five (45) days after the end of each fiscal quarter of Borrower and (2) not later than ninety (90) days after the end of each Fiscal Year of Borrower.
(g) If requested by Lender, Borrower shall use commercially reasonable efforts provide Lender (if the Securitization is a Public Securitization), but as to Tenants only to the extent such information is actually received by Borrower, promptly, and in any event within ten (10) Business Days following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
(h) If requested by Lender, whether in connection with a Securitization or at any time thereafter during which the Loan and any Related Loans are included in a Securitization, Borrower shall provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate a list of Tenants (including items required all affiliates of such Tenants) that in the aggregate (1) occupy 10% or items that would be required if more (but less than 20%) of the Securities issued in connection with a Securitization were offered publiclytotal floor area of the improvements or represent 10% or more (but less than 20%) to satisfy any of aggregate base rent, and all disclosure requirements (2) occupy 20% or more of the total floor area of the improvements or represent 20% or more of aggregate base.
(i) All financial statements provided by Borrower pursuant to this Section 8.1(c), (d), (e) or (f) shall be prepared in accordance with GAAP, and shall meet the Securities Act (includingrequirements of Regulation S-K or Regulation S-X, but not limited toas applicable, Regulation AB), the Exchange Act, any and other applicable securities laws Legal Requirements. All financial statements relating to a Fiscal Year shall be audited by Independent Accountants in accordance with generally accepted auditing standards, Regulation S-X or any amendmentRegulation S-K, modification or replacement to any of the foregoing) or required by any as applicable, Regulation AB, and all other applicable Legal Requirements, in each caseshall be accompanied by the manually executed report of the Independent Accountants thereon, which report shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and all other applicable Legal Requirements, and shall be further accompanied by a manually executed written consent of the Independent Accountants, in connection with form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document or and any Exchange Act Filing and to the use of the name of such Independent Accountants and the reference to such Independent Accountants as “experts” in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial statements shall be certified by the chief financial officer or as may otherwise be reasonably requested by Lendersenior vice president/controller of Borrower, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this paragraph.
Appears in 1 contract
Samples: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions transaction referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “"Secondary Market Transaction” Transactions" and the transactions referred to in clause (iii) shall hereinafter be referred to as a “"Securitization”". Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “"Securities”").
(b) If requested by Lender, Borrower shall shall, at no expense to Borrower (except to the extent otherwise made the obligation of Borrower pursuant to a separate provision of this Agreement and/or the other Loan Documents), assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, the information set forth on Schedule VI attached hereto, and (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance, and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor Property and any Affiliate of Borrower or Guarantorand Affiliates, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may reasonably require;; and
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender reasonably requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) change the interest rate, the stated maturity or the Rating Agencies may require;
amortization of principal as set forth herein or in the Note, or (vB) provide access to, and conduct tours of, the Property; and
(vi) provide certifications modify or amend any other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination material economic term of the Loan or any Updated InformationLoan.
(c) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements.
(d) If requested by Lender, Borrower shall use commercially reasonable efforts provide Lender with the following financial statements (it being understood that Lender shall request (i) full financial statements if it anticipates that the principal amount of the Loan at the time of Securitization equals or exceeds 20% of the aggregate principal amount of all mortgage loans included in the Securitization and (ii) summaries of such financial statements if the principal amount of the Loan at any such time equals or exceeds 10% of such aggregate principal amount):
(i) As of the Closing Date, a balance sheet with respect to provide Lenderthe Property, promptly upon requestmeeting the requirements of Section 210.3-01 of Regulation S-X of the Securities Act and statements of income and statements of cash flows with respect to the Property, with any meeting the requirements of Section 210.3-02 of Regulation S-X, provided that such balance sheet need not be audited, and, to the extent that such balance sheet is more than 135 days old as of the Closing Date, interim financial statements of the Property meeting the requirements of Section 210.3-01 and 210.3-02 of Regulation S-X (all of such financial statements, collectively, the "Standard Statements"); provided, however, that if the Property would be deemed to constitute a business and not real estate under Regulation S-X that has been acquired by Borrower from an unaffiliated third party, as to which the other conditions set forth in Section 210.3-05 of Regulation S-X for provision of financial statements in accordance with such Section have been met, at Lender's election in lieu of or in addition to the Standard Statements otherwise required by this Section 9.1(c)(i), Borrower shall instead provide the financial statements required by such Section 210.3-05 of Regulation S-X ("Acquired Property Statements").
(ii) Not later than 30 days after the end of each fiscal quarter following the Closing Date, a balance sheet of the Property as of the end of such fiscal quarter, meeting the requirements of Section 210.3-01 of Regulation S-X, provided that such balance sheet need not be audited, and statements of income and statements of cash flows of the Property for the period commencing on the day following the last day of the most recent Fiscal Year and ending on the date of such balance sheet and for the corresponding period of the most recent Fiscal Year, meeting the requirements of Section 210.3-02 of Regulation S-X (provided, that if for such corresponding period of the most recent Fiscal Year Acquired Property Statements were permitted to be provided hereunder pursuant to paragraph (i) above, Borrower shall instead provide Acquired Property Statements for such corresponding period). If requested by Lender, Borrower shall also provide "summarized financial information," as defined in Section 210.1-02(bb) of Regulation S-X, with respect to such quarterly financial statements.
(iii) Not later than 90 days after the end of each Fiscal Year following the Closing Date, a balance sheet of the Property as of the end of such Fiscal Year, meeting the requirements of Section 210.3-01 of Regulation S-X, provided that such balance sheet need not be audited, and statements of income and statements of cash flows of the Property for such Fiscal Year, meeting the requirements of Section 210.3-02 of Regulation S-X provided that such statements need not be audited. If requested by Lender, Borrower shall provide summarized financial information with respect to such annual financial statements.
(iv) Upon 20 Business Days after notice from Lender in connection with the Securitization of this Loan, such additional financial statements, such that, as of the date (each a "Disclosure Document Date") of each Disclosure Document, Borrower shall have provided Lender with all financial statements as described in paragraph (i) above; provided that the Fiscal Year and interim periods for which such financial statements shall be provided shall be determined as of such Disclosure Document Date, provided that such statements need not be audited.
(v) In the event Lender determines, in connection with a Securitization, that the financial statements required in order to comply with Regulation S-X or Legal Requirements are other than as provided herein, then notwithstanding the provisions of this Section, Lender may request, and Borrower shall promptly provide, such combination of Acquired Property Statements and/or Standard Statements as may be necessary for such compliance.
(vi) Any other or additional financial statements, or financial, statistical or operating information, as shall be required pursuant to Regulation S-X (provided that such statements and information need not be audited) or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, Requirements in connection with any Disclosure Document or any filing under or pursuant to the Exchange Act Filing in connection with or relating to a Securitization (hereinafter an "Exchange Act Filing") or as may shall otherwise be reasonably requested by Lender to meet disclosure, rating agency or marketing requirements. All financial statements provided by Borrower pursuant to this Section 9.1 (c) shall be prepared in accordance with GAAP, and shall meet the requirements of Regulation S-X (provided that such statements need not be audited) and other applicable Legal Requirements. All financial statements of Guarantor relating to a Fiscal Year shall be audited by the independent accountants in accordance with generally accepted auditing standards, Regulation S-X and all other applicable Legal Requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation S-X and all other applicable Legal Requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such independent accountants and the reference to such independent accountants as "experts" in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial statements shall be certified by the chief financial officer of Borrower, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this paragraph.
Appears in 1 contract
Samples: Loan Agreement (Corporate Property Associates 16 Global Inc)
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any PersonLoan, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “"Secondary Market Transaction” Transactions" and the transactions referred to in clause (iii) shall hereinafter be referred to as a “"Securitization”". Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “"Securities”").
(b) If requested by Lender, Borrowers shall assist Lender, at Lender's expense (provided that Borrower shall assist Lender be liable for its own external expenses), in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts to:
(i) (A) provide updated financial and other information with respect to each of the PropertyProperties, the business operated at each of the PropertyProperties, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, including, without limitation, Borrowers and the information set forth on Schedule VI attached heretoManager, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to each of the PropertyProperties, and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s 's and, if appropriate, Phase II’s's), property condition reports and other due diligence investigations of each of the Property Properties each, at Lender's expense (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “"Updated Information”"), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to each of the Property, Borrower, Guarantor Properties and any Affiliate of Borrower or GuarantorBorrowers and their Affiliates, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;; and
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and to each Borrower’s 's organizational documents as Lender reasonably requested by Lender; provided, however, that no Borrower shall be required to modify or amend any Loan Document if such modification or amendment would (A) change the interest rate, the stated maturity or the Rating Agencies may require;
amortization of principal as set forth herein or in the Note, or (vB) provide access to, and conduct tours of, the Property; and
(vi) provide certifications modify or amend any other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination material economic term of the Loan or any Updated InformationLoan.
(c) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements.
(d) If requested by Lender, each Borrower shall use commercially reasonable efforts provide Lender with the following financial statements (it being understood that Lender shall request (i) full financial statements if it anticipates that the principal amount of the Loan at the time of a Securitization may, or if the principal amount of the Loan at any time during which the Loan is included in a Securitization does, equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included in the Securitization, and (ii) summaries of such financial statements if the principal amount of the Loan at any such time equals or exceeds ten percent (10.0)% of such aggregate principal amount) (all references to provide LenderRegulation S-X in this Section 9.1(c) referring to Regulation S-X of the Securities Act):
(i) As of the Closing Date, promptly upon requesta balance sheet with respect to each of the Properties for the two most recent Fiscal Years or for such shorter owned period, meeting the requirements of Section 210.3-01 of Regulation S-X, and statements of income and statements of cash flows with any respect to each of the Properties for the three most recent Fiscal Years or for such shorter owned period, meeting the requirements of Section 210.3-02 of Regulation S-X, and, to the extent that such balance sheet is more than 135 days old as of the Closing Date, interim financial statements of each of the Properties meeting the requirements of Section 210.3-01 and 210.3-02 of Regulation S-X (all of such financial statements, collectively, the "Standard Statements"); provided, however, that if any Property would be deemed to constitute a business and not real estate under Regulation S-X that has been acquired by each Borrower from an unaffiliated third party, as to which the other conditions set forth in Section 210.3-05 of Regulation S-X for provision of financial statements in accordance with such Section have been met, at Lender's election in lieu of or in addition to the Standard Statements otherwise required by this Section 9.1(c)(i), each Borrower shall instead provide the financial statements required by such Section 210.3-05 of Regulation S-X ("Acquired Property Statements").
(ii) Not later than forty-five (45) days after the end of each fiscal quarter following the Closing Date, a balance sheet of each of the Properties as of the end of such fiscal quarter, meeting the requirements of Section 210.3-01 of Regulation S-X, and statements of income and statements of cash flows of each of the Properties for the period commencing on the day following the last day of the most recent Fiscal Year and ending on the date of such balance sheet and for the corresponding period of the most recent Fiscal Year, meeting the requirements of Section 210.3-02 of Regulation S-X (provided, that if for such corresponding period of the most recent Fiscal Year Acquired Property Statements were permitted to be provided hereunder pursuant to paragraph (i) above, each Borrower shall instead provide Acquired Property Statements for such corresponding period). If requested by Lender, each Borrower shall also provide "summarized financial information," as defined in Section 210.1-02(bb) of Regulation S-X, with respect to such quarterly financial statements.
(iii) Not later than ninety (90) days after the end of each Fiscal Year following the Closing Date, a balance sheet of each of the Properties as of the end of such Fiscal Year, meeting the requirements of Section 210.3-01 of Regulation S-X, and statements of income and statements of cash flows of each of the Properties for such Fiscal Year, meeting the requirements of Section 210.3-02 of Regulation S-X. If requested by Lender, each Borrower shall provide summarized financial information with respect to such annual financial statements.
(iv) Upon ten (10) Business Days after notice from Lender in connection with the Securitization of the Loan, such additional financial statements, such that, as of the date (each a "Disclosure Document Date") of each Disclosure Document, each Borrower shall have provided Lender with all financial statements as described in paragraph (i) above; provided that the Fiscal Year and interim periods for which such financial statements shall be provided shall be determined as of such Disclosure Document Date.
(v) In the event Lender determines, in connection with a Securitization, that the financial statements required in order to comply with Regulation S-X or any Legal Requirements are other than as provided herein, then notwithstanding the provisions of this Section, Lender may request, and each Borrower shall promptly provide, such combination of Acquired Property Statements and/or Standard Statements as may be necessary for such compliance.
(vi) Any other or additional financial statements, or financial, statistical or operating information information, as shall be required pursuant to Regulation S-X or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items that would be required if the Securities issued in connection with a Securitization were offered publicly) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, Regulation AB), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, Requirements in connection with any Disclosure Document or any filing under or pursuant to the Exchange Act in connection with or relating to a Securitization (hereinafter an "Exchange Act Filing") or as shall otherwise be requested by Lender to meet disclosure, rating agency or marketing requirements. All financial statements provided by Borrowers pursuant to this Section 9.1(c) shall be prepared in accordance with the cash basis method of accounting, and shall meet the requirements of Regulation S-X and other applicable Legal Requirements. All financial statements relating to a Fiscal Year shall be audited by independent accountants in accordance with generally accepted auditing standards, Regulation S-X and all other applicable Legal Requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation S-X and all other applicable Legal Requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such independent accountants and the reference to such independent accountants as "experts" in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial statements shall be certified by the chief financial officer of such Borrower, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this paragraph. To the extent the cost of fulfilling the foregoing provisions of this Section 9.1(c) shall exceed the general accounting costs to Borrower plus the costs of Borrower in complying with the Loan Documents but for the inclusion of the reporting required pursuant to Section 9.1(c), the same shall be at the cost of Lender. Notwithstanding the foregoing provisions of this Section 9.1(c), if the entire Loan is included in a Securitization in which no classes of Securities are offered in a transaction registered with the Securities and Exchange Commission, (a) the quarterly statements required pursuant to Section 9.1(c)(ii) may be delivered not later than sixty (60) days after the end of each fiscal quarter, (b) the annual financial statements required pursuant to Section 9.1(c)(iii) may be delivered not later than ninety (90) days after the end of each Fiscal Year and (c) the financial statements required pursuant to this Section 9.1(c) may be prepared on the income tax basis of accounting, provided a notation is made setting forth the difference between the income tax basis of accounting and generally accepted account principles and the effect thereof on such financial statements. All third party costs and expenses incurred by Lender in connection with the Securitization or as may other sale or transfer of the Loan not otherwise payable by Borrower under the Loan Documents and all additional reasonable third party costs and expenses, including reasonable counsel and accountant's fees and expenses, incurred by Borrower in connection with the Securitization or other sale or transfer of the Loan shall be reasonably requested paid by Lender.
Appears in 1 contract
Sale of Mortgage and Securitization. Subject to Section 9.4 hereof:
(a) Lender Agent and Lenders shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any PersonLoan, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization Secondary Market Transaction are hereinafter referred to as “Securities”). At Agent’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by LenderAgent, Borrower shall reasonably cooperate with Agent and assist Lender Agent in satisfying the market standards to which Lender Agent customarily adheres or which may be reasonably required in the marketplace or marketplace, by prospective investors, the Rating Agencies or Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including using commercially reasonable efforts to:
(i) (A) provide updated financial and other information with respect to the each Property, the business operated at the each Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantorand the Manager, including, without limitation, the information set forth on Schedule VI Exhibit A attached hereto, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the each Property, and (C) provide updated appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the each Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel reasonably acceptable to Lender Agent and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and the NRSROsAgent, trustee in any Securitization, underwriters, NRSROs and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or reasonably required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the each Property, Borrowerthe Loan Documents, Guarantor and any Affiliate of Borrower or Guarantorand its Affiliates, which counsel and opinions shall be satisfactory reasonably acceptable to Lender Agent and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;; and
(iv) subject (A) review any Disclosure Document or any interim draft thereof furnished by Agent to Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s organizational documents as Lender or the Rating Agencies may require;
(v) provide access to, and conduct tours of, the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies Borrower with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(c) Borrower agrees contained therein that (i) Lender may disclose any information relating was furnished to Borrower, its Affiliates, the Property or the Loan (including information provided Agent by or on behalf of Borrower in connection with the preparation of such Disclosure Document or any in connection with the underwriting or closing of its Affiliates the Loan, including financial statements of Borrower and Guarantor, operating statements and rent rolls with respect to Lender) to any Person (includingthe Properties, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (iiB) the findings and conclusions within three (3) Business Days following Borrower’s receipt thereof, provide to Agent in writing any revisions to such Disclosure Document or interim draft thereof necessary or advisable to insure that such reviewed information does not contain any untrue statement of a material fact or omit to state any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirementsmaterial fact necessary to make statements contained therein not misleading.
(dc) If requested If, at the time a Disclosure Document is being prepared for a Securitization, Agent reasonably expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by Lendercontract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall use commercially reasonable efforts furnish to provide Lender, promptly Agent upon request, request the following financial information:
(i) if Agent expects that the principal amount of the Loan together with any financial statementsRelated Loans, financialas of the cut-off date for such Securitization, statistical may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating information or other information income for each Property and the Related Properties for the most recent Fiscal Year and interim period as Lender shall reasonably determine is necessary or appropriate required under Item 1112(b)(1) of Regulation AB (including items required (or items that would be required or, if the Securities issued Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in connection with a Securitization were offered publiclyItem 301 of Regulation S-K and Item 1112(b)(1) to satisfy any and all disclosure requirements pursuant to the Securities Act (including, but not limited to, of Regulation AB), or
(ii) if Agent expects that the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any principal amount of the foregoingLoan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Agent determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to each Property for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Agent determines that the Properties are the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) were acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably requested by LenderRule 3-14 of Regulation S-X)).
Appears in 1 contract
Samples: Loan Agreement (Clipper Realty Inc.)
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge or otherwise transfer the Loan or any portion thereof or interest therein to any Person, (ii) to sell participation interests in the Loan to any Person, or (iii) to securitize the Loan or any portion thereof or interest therein in one or more private or public single asset or pooled loan securitizations. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” EAST\87098743.3 and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”).
(b) If requested by Lender, Borrower Borrowers shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, BorrowerBorrowers, Guarantor, any Affiliate of Borrower or GuarantorGuarantor and Manager, including, without limitation, the information set forth on Schedule VI attached hereto, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the Property, and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and the NRSROs, and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, BorrowerBorrowers, Guarantor and any Affiliate of Borrower or Guarantor, which counsel and opinions shall be reasonably satisfactory to Lender and satisfactory to the Rating AgenciesAgencies in their sole discretion;
(iii) provide updated (as of the closing date of any Secondary Market Transaction) representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;
(iv) subject to the limitations in clauses (1) through (5) of Section 9.3, execute modifications and amendments to the Loan Documents and Borrower’s Borrowers’ organizational documents as Lender or the Rating Agencies may require;
(v) subject to the rights of the Sole Tenant, provide access to, and conduct tours of, the Property; and
(vi) provide certifications or other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination of the Loan or any Updated Information.
(c) Each Borrower agrees that (i) Lender may disclose any information relating to such Borrower, its Affiliates, the Property or Property, the Loan (including information provided by or on EAST\87098743.3 behalf of such Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements.
(d) If, at the time a Disclosure Document is being prepared for a Securitization, Lender expects that Borrowers alone or Borrowers and one or more Affiliates of Borrowers (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, each Borrower shall furnish to Lender, upon request the following financial information:
(i) if Lender expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Property and the Related Properties for the most recent fiscal year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Property for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Property is the Significant Obligor and the Property (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other Legal Requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(e) Further, if requested by Lender, Borrowers shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Property if, in connection with a Securitization, Lender expects there to be, as of the cutoff date for such EAST\87098743.3 Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (i) Exchange Act Filings are required to be made under applicable Legal Requirements or (ii) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If Lender determines that Borrowers alone or Borrowers and one or more Affiliates of Borrowers collectively, or the Property alone or the Property and Related Properties collectively, are a Significant Obligor, then each Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (i) Exchange Act Filings are required to be made under applicable Legal Requirements or (ii) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(g) Any financial data or financial statements provided pursuant to this Section 9.1 shall be furnished to Lender within the following time periods:
(i) with respect to information requested in connection with the preparation of Disclosure Documents for a Securitization, within ten (10) Business Days after notice from Lender; and
(ii) with respect to ongoing information required under Section 9.1I and (f) above, (1) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (2) not later than seventy-five (75) days after the end of each Fiscal Year of Borrower.
(h) If requested by Lender, Borrower Borrowers shall use commercially reasonable efforts provide Lender, promptly, and in any event within three (3) Business Days following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
(i) If requested by Lender, whether in connection with a Securitization or at any time thereafter during which the Loan and any Related Loans are included in a Securitization, Borrowers shall provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate a list of Tenants (including items required all affiliates of such Tenants) that in the aggregate (1) occupy ten percent (10%) or items that would be required if more (but less than twenty percent (20%)) of the Securities issued in connection with a Securitization were offered publiclytotal floor area of the improvements or represent ten percent (10%) to satisfy any or more (but less than twenty percent (20%)) of aggregate base rent, and all disclosure requirements (2) occupy twenty percent (20%) or more of the total floor area of the improvements or represent twenty percent (20%) or more of aggregate base rent. EAST\87098743.3
(j) All financial statements provided by Borrowers pursuant to Section 9.1(d), (e), (f) or (g) shall be prepared in accordance with GAAP, and shall meet the Securities Act (includingrequirements of Regulation S-K or Regulation S-X, but not limited toas applicable, Regulation AB), the Exchange Act, any and other applicable securities laws Legal Requirements. All financial statements relating to a Fiscal Year shall be audited by independent accountants of Borrower acceptable to Lender in accordance with generally accepted auditing standards, Regulation S-X or any amendmentRegulation S-K, modification or replacement to any of the foregoing) or required by any as applicable, Regulation AB, and all other applicable Legal Requirements, in each caseshall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation S-K or Regulation S-X, as applicable, Regulation AB, and all other applicable Legal Requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in connection with form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document or and any Exchange Act Filing and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document and Exchange Act Filing (or as may comparable information is required to otherwise be reasonably requested available to holders of the Securities under Regulation AB or applicable Legal Requirements), all of which shall be provided at the same time as the related financial statements are required to be provided. All other financial statements shall be certified by Lenderthe chief financial officer of Borrower, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this paragraph.
Appears in 1 contract
Samples: Loan Agreement (Cole Credit Property Trust V, Inc.)
Sale of Mortgage and Securitization. (a) Lender shall have the right (i) to sell, assign, pledge sell or otherwise transfer the Loan (including, without limitation, the Xxxxxxxx Loan, the Medford Loan and/or the Warrenton Loan) or any portion thereof or interest therein to any Personas a whole loan, (ii) to sell participation interests in the Loan to any Person(including, without limitation, the Xxxxxxxx Loan, the Medford Loan and/or the Warrenton Loan), or (iii) to securitize the Loan (including, without limitation, the Xxxxxxxx Loan, the Medford Loan and/or the Warrenton Loan) or any portion thereof or interest therein in one or more private or public a single asset securitization or a pooled loan securitizationssecuritization. (The transactions referred to in clauses (i), (ii) and (iii) are each shall hereinafter be referred to collectively as a “Secondary Market Transaction” "SECONDARY MARKET TRANSACTIONS" and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”"SECURITIZATION". Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”"SECURITIES").. 150
(b) If requested by Lender, Borrower Borrowers shall assist Lender Lender, at Borrowers' reasonable expense, in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies or applicable Legal Requirements in connection with any Secondary Market Transactions, including using commercially reasonable efforts to:
(i) (A) provide updated financial and other information with respect to the PropertyProperties, the business operated at the PropertyProperties, Borrower, Guarantor, any Affiliate of each Borrower or Guarantor, including, without limitation, and the information set forth on Schedule VI attached heretoManager, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage of aggregate base rent for each Tenant) relating to the PropertyProperties, and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s 's and, if appropriate, Phase II’s's), property condition reports and other due diligence investigations of the Property Properties (the information referred to in clauses (A), (B) and (C) shall hereinafter be referred to collectively as “Updated Information”"UPDATED INFORMATION"), together, if customary, with appropriate verification of the Updated Information through letters of auditors, certificates of third party service providers auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender and Lender, the NRSROs, Rating Agencies and their respective counsel, agents and representatives, as to bankruptcy non-consolidation, fraudulent conveyance and true sale or any other opinion customary with respect to loans comparable to the Loan in size and character in Secondary Market Transactions or required by the Rating Agencies actually rating the securities issued pursuant to such transaction with respect to the Property, Borrower, Guarantor Properties and any Affiliate of Borrower or GuarantorBorrowers and their Affiliates, which counsel and opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated (updated, as of the closing date of any the Secondary Market Transaction) , representations and warranties made in the Loan Documents and such additional representations and warranties, in each case, consistent with fact, warranties as Lender or the Rating Agencies may require;; and
(iv) subject to Section 9.3, execute modifications and amendments to the Loan Documents and each Borrower’s 's organizational documents as Lender requested by Lender; provided, however, that Borrowers shall not be required to modify or amend any Loan Document if such modification or amendment would (A) change the interest rate, the stated maturity or the Rating Agencies may require;
amortization of principal as set forth herein or in the Notes, or (vB) provide access to, and conduct tours of, the Property; and
(vi) provide certifications modify or amend any other evidence of reliance acceptable to Lender and the Rating Agencies with respect to third party reports and other information obtained in connection with the origination material economic term of the Loan or any Updated InformationLoan.
(c) Borrower agrees that (i) Lender may disclose any information relating to Borrower, its Affiliates, the Property or the Loan (including information provided by or on behalf of Borrower or any of its Affiliates to Lender) to any Person (including, but not limited to, investors or prospective investors in the Securities, the NRSROs, investment banking firms, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization) actually or potentially involved in or related to any Secondary Market Transaction or any other Person reasonably requesting such information and (ii) the findings and conclusions of any third-party due diligence report obtained by Lender or other Indemnified Persons may be made publicly available if required, and in the manner prescribed, by applicable Legal Requirements.
(d) If requested by Lender, each Borrower shall use commercially reasonable efforts provide Lender with the following financial statements (it being understood that Lender shall request (i) full financial statements if it anticipates that the principal amount of the Loan at the time of a Securitization may, or if the principal amount of the Loan at any time during which the Loan is included in a Securitization does, equal or exceed 20% of the aggregate principal amount of all mortgage loans included in the Securitization, and (ii) summaries of such financial statements if the principal amount of the Loan at any such time equals or exceeds 10% of such aggregate principal amount) (all references to provide LenderRegulation S-X in this SECTION 9.1(c) referring to Regulation S-X of the Securities Act):
(i) As of the Closing Date, promptly upon requesta balance sheet with respect to the applicable Individual Property for the two most recent Fiscal Years, meeting the requirements of Section 210.3-01 of Regulation S-X, and statements of income and statements of cash flows with any respect to such Individual Property for the three most recent Fiscal Years, meeting the 151 requirements of Section 210.3-02 of Regulation S-X, and, to the extent that such balance sheet is more than 135 days old as of the Closing Date, interim financial statements of such Individual Property meeting the requirements of Section 210.3-01 and 210.3-02 of Regulation S-X (all of such financial statements, financialcollectively, statistical or operating information or other information as Lender shall reasonably determine is necessary or appropriate (including items required (or items the "STANDARD STATEMENTS"); provided, however, that if such Individual Property would be deemed to constitute a business and not real estate under Regulation S-X that has been acquired by such Borrower from an unaffiliated third party, as to which the other conditions set forth in Section 210.3-05 of Regulation S-X for provision of financial statements in accordance with such Section have been met, at Lender's election in lieu of or in addition to the Standard Statements otherwise required by this SECTION 9.1(c)(i), such Borrower shall instead provide the financial statements required by such Section 210.3-05 of Regulation S-X ("ACQUIRED PROPERTY STATEMENTS").
(ii) Not later than thirty (30) days after the end of each fiscal quarter following the Closing Date, a balance sheet of the applicable Individual Property as of the end of such fiscal quarter, meeting the requirements of Section 210.3-01 of Regulation S-X, and statements of income and statements of cash flows of such Individual Property for the period commencing on the day following the last day of the most recent Fiscal Year and ending on the date of such balance sheet and for the corresponding period of the most recent Fiscal Year, meeting the requirements of Section 210.3-02 of Regulation S-X (provided, that if for such corresponding period of the Securities issued in connection with a Securitization most recent Fiscal Year Acquired Property Statements were offered publicly) permitted to satisfy any and all disclosure requirements be provided hereunder pursuant to the Securities Act paragraph (includingi) above, but not limited to, Regulation ABsuch Borrower shall instead provide Acquired Property Statements for such corresponding period), the Exchange Act, any other applicable securities laws or any amendment, modification or replacement to any of the foregoing) or required by any other Legal Requirements, in each case, in connection with any Disclosure Document or any Exchange Act Filing or as may otherwise be reasonably . If requested by Lender, such Borrower shall also provide "summarized financial information," as defined in Section 210.1-02(bb) of Regulation S-X, with respect to such quarterly financial statements.
(iii) Not later than sixty (60) days after the end of each Fiscal Year following the Closing Date, a balance sheet of the applicable Individual Property as of the end of such Fiscal Year, meeting the requirements of Section 210.3-01 of Regulation S-X, and statements of income and statements of cash flows of the Property for such Fiscal Year, meeting the requirements of Section 210.3-02
Appears in 1 contract
