Securitization. In addition to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) through the pledge of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilities.
Appears in 9 contracts
Samples: Credit Agreement (Independence Contract Drilling, Inc.), Revolving Credit Agreement (Joe's Jeans Inc.), Credit Agreement (Independence Contract Drilling, Inc.)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loans Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (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”) through . Any certificates, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the pledge of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization Loan may be rated subject to one or more Secondary Market Transactions.
(b) If requested by a rating agency. The Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably cooperate required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Lender Parties to effect Properties, the Securitization business operated at the Properties, Borrower, Sponsor and the Manager, including, without limitation, by (a) amending this Agreement and the other Loan Documentsinformation set forth on Exhibit C attached hereto, and executing such additional documents, as reasonably requested (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Lenders Properties (the “Updated Information”) which were obtained in connection with the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents 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 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, (B) 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 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 Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization; provided , 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 Properties alone or the Properties 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 amendment Securitization, may equal or additional documentation does 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 impose material additional costs on Borrower 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 amendment 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 Properties 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 Properties is 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) 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 Properties if, in connection with a Securitization, Lender reasonably determines 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 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 (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) 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.
(e) If Lender 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 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) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional documentation does not materially adversely affect the rightsfinancial statements, or materially increase the obligationsfinancial, of Borrower under the Loan Documents statistical or change operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or affect in Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a manner adverse to Borrower the financial terms of the Loans, (b) providing such information Securitization or as may shall otherwise be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization LiabilitiesLender.
Appears in 9 contracts
Samples: Loan Agreement (Invitation Homes Inc.), Loan Agreement, Loan Agreement (Invitation Homes Inc.)
Securitization. In addition to any other assignment permitted pursuant to this Section, Loan Parties The Borrower hereby acknowledge acknowledges that (x) the Lenders, -------------- Lenders and their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “"Securitization”") through the pledge of the Loans as collateral security for -------------- loans to a Lender Party the Lenders or their Affiliates or through the sale of the Loans or the assignment or issuance of direct or indirect interests in the Loans (such asLoans, for instance, collateralized loan obligations), and (y) such Securitization may which loans to the Lenders or their Affiliates or direct or indirect interests will be rated by a Xxxxx'x, S&P or one or more other rating agencyagencies (the "Rating Agencies"). The Loan Parties --------------- Borrower shall reasonably cooperate with the Lender Parties Lenders and their Affiliates to effect the Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; , provided that (i) any such amendment or additional documentation does not impose material additional costs on the Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Borrower under the Loan Documents or change or affect in a manner adverse to the Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing in connection with any rating of the Loans a certificate (i) agreeing to indemnify the Lender PartiesLenders and their Affiliates, any of the Rating Agencies, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity Securitization (collectively, the “"Securitization Parties”") for any losses, claims, damages or ---------------------- liabilities (the “Securitization "Liabilities”") to which the Lender Parties Lenders, their Affiliates or such ----------- Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of the Borrower or any Loan Party Affiliate of the Borrower to the Lender Partiers Lenders in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, Loans and (ii) agreeing to reimburse the Lender Parties Lenders and the other Securitization Parties their Affiliates for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilities.. [SIGNATURES BEGIN NEXT PAGE] The parties hereto have caused this Agreement to be duly executed as of the day and year first above written. BORROWER: RMG I, LLC By: /s/ Xxxx X. Xxxxxx -------------------------------------- Name: ------------------------------------ Title: ----------------------------------- ADMINISTRATIVE AGENT: DRAWBRIDGE SPECIAL OPPORTUNITIES FUND LP By: Drawbridge Special Opportunities GP LLC By: /s/ Xxxx X. Xxxxxxxx ------------------------------------------- Xxxx X. Xxxxxxxx Chief Operating Officer Address: 1251 Avenue of the Americas Xxxxx 0000 Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxx X. Xxxxxxxx LENDER: HIGHBRIDGE/XXXXX SPECIAL OPPORTUNITIES FUND, L.P. By: Highbridge/Xxxxx Capital Management, LLC By: /s/ Xxxxxx X. Xxxxx --------------------------------------- Xxxxxx X. Xxxxx Managing Principal Address: 0 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxx X. Xxxxxxx Telecopy: (000) 000-0000
Appears in 5 contracts
Samples: Credit Agreement (Us Energy Corp), Credit Agreement (Crested Corp), Credit Agreement (Us Energy Corp)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loans Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (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”) through . Any certificates, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the pledge of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization Loan may be rated subject to one or more Secondary Market Transactions.
(b) If requested by a rating agency. The Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably cooperate required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Lender Parties to effect Properties, the Securitization business operated at the Properties, Borrower, Sponsor and the Manager, including, without limitation, by (a) amending this Agreement and the other Loan Documentsinformation set forth on Exhibit C attached hereto, and executing such additional documents, as reasonably requested (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Lenders Properties (the “Updated Information”) which were obtained in connection with the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantor’s New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents 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 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, (B) 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 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 Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization; provided , 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 Properties alone or the Properties 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 amendment Securitization, may equal or additional documentation does 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 impose material additional costs on Borrower 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 amendment 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 Properties 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 Properties is 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) 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 Properties if, in connection with a Securitization, Lender reasonably determines 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 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 (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) 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.
(e) If Lender 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 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) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional documentation does not materially adversely affect the rightsfinancial statements, or materially increase the obligationsfinancial, of Borrower under the Loan Documents statistical or change operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or affect in Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a manner adverse to Borrower the financial terms of the Loans, (b) providing such information Securitization or as may shall otherwise be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization LiabilitiesLender.
Appears in 5 contracts
Samples: Loan Agreement (Invitation Homes Inc.), Loan Agreement (Invitation Homes Inc.), Loan Agreement (Invitation Homes Inc.)
Securitization. In addition to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge (a) Borrower understands that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) through the pledge certain of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization Provided Information may be rated by a rating agency. The Loan Parties shall reasonably cooperate included in disclosure documents in connection with the Lender Parties to effect the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act or the Exchange Act, or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects.
(ab) amending this Agreement Borrower agrees to provide, and to cause Mortgage Borrower and Guarantor to provide, in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification certificate (A) certifying that Borrower and Guarantor have carefully examined such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan), as applicable, including without limitation, the sections entitled “Special Considerations,” and/or “Risk Factors,” and “Certain Legal Aspects of the Mezzanine Loan,” or similar sections, and all sections relating to Borrower, Mortgage Borrower, Guarantor, Manager, their Affiliates, the Loan, the Loan Documents, the Collateral and executing the Properties, and any risks or special considerations relating thereto, and that, to the best of Borrower’s knowledge, such additional documentssections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (B) certifying that Mortgage Borrower and Guarantor have carefully examined such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan), as applicable, including without limitation, the sections entitled “Special Considerations,” and/or “Risk Factors,” and “Certain Legal Aspects of the Mortgage Loan,” or similar sections, and all sections relating to Borrower, Mortgage Borrower, Guarantor, Manager, their Affiliates, the Loan, the Loan Documents and the Properties, and any risks or special considerations relating thereto, and that, to the best of Borrower’s knowledge, such sections (and any other sections reasonably requested by requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the Lenders statements made, in connection with the Securitization; provided light of the circumstances under which they were made, not misleading, (C) indemnifying Lender (and for purposes of this Section 13.5, Lender hereunder shall include its officers and directors) and the Affiliate of Lender that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and has filed the registration statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect Person described in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify or (ii), an “Issuer Person”), and each director and officer of any Issuer Person, and each Person or entity who controls any Issuer Person within the Lender Parties, meaning of Section 15 of the Securities Act or any party providing credit support or otherwise participating in Section 20 of the Securitization, including any investors in a securitization entity Exchange Act (collectively, the “Securitization PartiesIssuer Group”), and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any such Person within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) Losses to which Lender, the Lender Parties Issuer Group or such Securitization Parties the Underwriter Group may become subject insofar as the Securitization Liabilities Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections (including any Loan Document Investor or in any writing delivered by Rating Agency “term sheets” or on behalf of any Loan Party presentations relating to the Lender Partiers in connection with any Loan Document Collateral, Properties and/or the Loan) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated thereinin such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Collateral, Properties and/or the Loan) or necessary in order to make the statements thereinin such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Collateral, Properties and/or the Loan) or in light of the circumstances under which they were made, not misleading (collectively the “Securities Liabilities”) and (D) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (C) or (D) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender or any member of the Issuer Group or Underwriter Group by or on behalf of Borrower, Mortgage Borrower or Guarantor in connection with the preparation of the memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Collateral, Properties and/or the Loan) or in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower, Mortgage Borrower or Guarantor, operating statements, rent rolls, environmental site assessment reports and property condition reports with respect to the Properties. This indemnity agreement will be in addition to any liability which Borrower, Mortgage Borrower and Guarantor may otherwise have. Moreover, the indemnification provided for in clauses (C) and (D) above shall be effective whether or not an indemnification certificate described in clauses (A) and (B) above is provided and shall be applicable based on information previously provided by Borrower, Mortgage Borrower and Guarantor or their Affiliates if Borrower, Mortgage Borrower or Guarantor do not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower agrees to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon an untrue statement in the Provided Information or the omission or alleged omission to state in the Provided Information a material fact required to be stated in the Provided Information in order to make the statements in the Provided Information, in light of the circumstances under which they were made not misleading and (ii) reimburse Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, the Issuer Group or the Underwriter Group in connection with defending or investigating the Securities Liabilities.
(d) Promptly after receipt by an indemnified party under this Section 13.5 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 13.5, notify the indemnifying party in writing of the commencement thereof, but the omission to so notify the indemnifying party will not relieve the indemnifying party from any liability which the indemnifying party may have to any indemnified party hereunder except to the extent that failure to notify causes prejudice to the indemnifying party. In the event that any action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it (or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. After notice from the indemnifying party to such indemnified party under this Section 13.5 the indemnifying party shall be responsible for any reasonable legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. The indemnifying party shall not be liable for the expenses of more than one such separate counsel unless an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another indemnified party.
(e) In order to provide for just and equitable contribution in circumstances in which the indemnity agreements provided for in Section 13.5(c) or Section 13.5(d) is or are for any reason held to be unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which would otherwise be indemnifiable under Section 13.5(c) or Section 13.5(d), the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages or liabilities (or action in respect thereof); provided, however, that no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s, Borrower’s and Guarantor’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation.
(f) Borrower shall, and shall cause Guarantor to, indemnify Lender and its officers, directors, partners, employees, representatives, agents and Affiliates against any Losses to which Lender and each of its officers, directors, partners, employees, representatives, agents and Affiliates, may become subject in connection with any indemnification to the Rating Agencies in connection with issuing, monitoring or maintaining the Securities insofar as the Losses arise out of or are based upon any untrue statement of any material fact in any information provided by or on behalf of Borrower to the Rating Agencies (the “Covered Rating Agency Information”) or arise out of or are based upon the omission to state a material fact in the Covered Rating Agency Information required to be stated therein or necessary in order to make the statements in the Covered Rating Agency Information, in light of the circumstances under which they were made, not misleading, .
(g) The liabilities and such indemnity obligations of Borrower and Lender under this Section 13.5 shall survive any transfer by the Lenders or their successors or assigns satisfaction of this Agreement and the satisfaction and discharge of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization LiabilitiesDebt.
Appears in 5 contracts
Samples: Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Securitization. In addition to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge (a) Borrower understands that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) through the pledge certain of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization Provided Information may be rated by a rating agency. The Loan Parties shall reasonably cooperate included in disclosure documents in connection with the Lender Parties to effect the Securitization Securitization, including, without limitation, by a prospectus, prospectus supplement, offering memorandum or private placement memorandum (aeach, a “Disclosure Document”) amending this Agreement and may also be included in filings with the other Loan DocumentsSecurities and Exchange Commission pursuant to the Securities Act or the Exchange Act, or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and executing such additional documentsservice providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, as reasonably requested Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Lenders Disclosure Document accurate and complete in all material respects.
(b) Borrower agrees to provide, and to cause Guarantor to provide, in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency “term sheets” or presentations relating to the Securitization; provided Properties and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification certificate (A) certifying that Borrower and Guarantor have carefully examined such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan), as applicable, including without limitation, the sections entitled “Special Considerations,” and/or “Risk Factors,” and “Certain Legal Aspects of the Mortgage Loan,” or similar sections, and all sections relating to Borrower, Guarantor, Manager, their Affiliates, the Loan, the Loan Documents and the Properties, and any risks or special considerations relating thereto, and that, to the best of Borrower’s knowledge, such sections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (B) indemnifying Lender (and for purposes of this Section 13.5, Lender hereunder shall include its officers and directors) and the Affiliate of Lender that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and has filed the registration statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect Person described in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify or (ii), an “Issuer Person”), and each director and officer of any Issuer Person, and each Person or entity who controls any Issuer Person within the Lender Parties, meaning of Section 15 of the Securities Act or any party providing credit support or otherwise participating in Section 20 of the Securitization, including any investors in a securitization entity Exchange Act (collectively, the “Securitization PartiesIssuer Group”), and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any such Person within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) Losses to which Lender, the Lender Parties Issuer Group or such Securitization Parties the Underwriter Group may become subject insofar as the Securitization Liabilities Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections (including any Loan Document Investor or in any writing delivered by Rating Agency “term sheets” or on behalf of any Loan Party presentations relating to the Lender Partiers in connection with any Loan Document Properties and/or the Loan) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan) or necessary in order to make the statements thereinin such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan) or in light of the circumstances under which they were made, not misleading (collectively the “Securities Liabilities”) and (C) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender or any member of the Issuer Group or Underwriter Group by or on behalf of Borrower or Guarantor in connection with the preparation of the memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan) or in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower or Guarantor, operating statements, rent rolls, environmental site assessment reports and property condition reports with respect to the Properties. This indemnity agreement will be in addition to any liability which Borrower and Guarantor may otherwise have. Moreover, the indemnification provided for in clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and shall be applicable based on information previously provided by Borrower and Guarantor or their Affiliates if Borrower or Guarantor do not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower agrees to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon an untrue statement in the Provided Information or the omission or alleged omission to state in the Provided Information a material fact required to be stated in the Provided Information in order to make the statements in the Provided Information, in light of the circumstances under which they were made not misleading and (ii) reimburse Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, the Issuer Group or the Underwriter Group in connection with defending or investigating the Securities Liabilities.
(d) Promptly after receipt by an indemnified party under this Section 13.5 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 13.5, notify the indemnifying party in writing of the commencement thereof, but the omission to so notify the indemnifying party will not relieve the indemnifying party from any liability which the indemnifying party may have to any indemnified party hereunder except to the extent that failure to notify causes prejudice to the indemnifying party. In the event that any action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it (or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. After notice from the indemnifying party to such indemnified party under this Section 13.5 the indemnifying party shall be responsible for any reasonable legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. The indemnifying party shall not be liable for the expenses of more than one such separate counsel unless an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another indemnified party.
(e) In order to provide for just and equitable contribution in circumstances in which the indemnity agreements provided for in Section 13.5(c) or Section 13.5(d) is or are for any reason held to be unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which would otherwise be indemnifiable under Section 13.5(c) or Section 13.5(d), the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages or liabilities (or action in respect thereof); provided, however, that no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s, Borrower’s and Guarantor’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation.
(f) Borrower shall, and shall cause Guarantor to, indemnify Lender and its officers, directors, partners, employees, representatives, agents and Affiliates against any Losses to which Lender and each of its officers, directors, partners, employees, representatives, agents and Affiliates, may become subject in connection with any indemnification to the Rating Agencies in connection with issuing, monitoring or maintaining the Securities insofar as the Losses arise out of or are based upon any untrue statement of any material fact in any information provided by or on behalf of Borrower to the Rating Agencies (the “Covered Rating Agency Information”) or arise out of or are based upon the omission to state a material fact in the Covered Rating Agency Information required to be stated therein or necessary in order to make the statements in the Covered Rating Agency Information, in light of the circumstances under which they were made, not misleading, .
(g) The liabilities and such indemnity obligations of Borrower and Lender under this Section 13.5 shall survive any transfer by the Lenders or their successors or assigns satisfaction of this Agreement and the satisfaction and discharge of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization LiabilitiesDebt.
Appears in 4 contracts
Samples: Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loans Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (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”) through . Any certificates, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the pledge of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization Loan may be rated subject to one or more Secondary Market Transactions.
(b) If requested by a rating agency. The Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably cooperate required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Lender Parties to effect Properties, the Securitization business operated at the Properties, Borrower, Sponsor and the Manager, including, without limitation, by (a) amending this Agreement and the other Loan Documentsinformation set forth on Exhibit C attached hereto, and executing such additional documents, as reasonably requested (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Lenders Properties (the “Updated Information”) which were obtained in connection with the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents 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 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, (B) 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 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 Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization; provided , 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 Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect if Lender reasonably determines that the rights, or materially increase the obligations, principal amount of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms together with any Related Loans, as of the Loanscut-off date for such Securitization, may equal or exceed ten percent (b10%) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating (but less than twenty percent (20%)) of the Loans aggregate principal amount of all mortgage loans included or the Securitization, and (c) providing a certificate (i) agreeing expected to indemnify the Lender Parties, or any party providing credit support or otherwise participating be included in the Securitization, including any investors 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 a securitization entity (collectivelyItem 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and or
(ii) agreeing 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 reimburse 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 Parties 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 if Lender determines that the Properties is 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) was acquired from an unaffiliated third party and the other Securitization Parties for any legal or other expenses reasonably incurred conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by such Persons in connection with defending the Securitization LiabilitiesRule 3-14 of Regulation S-X)).
Appears in 4 contracts
Samples: Loan Agreement (Invitation Homes Inc.), Loan Agreement (Invitation Homes Inc.), Loan Agreement (Invitation Homes Inc.)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization. The transaction referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge of the Loans as collateral security for loans market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans (such asmarketplace or by the Rating Agencies in connection with any Secondary Market Transactions, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; provided that to:
(i) any such amendment provide (A) updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, Sponsor, SPE Component Entity and Manager, (B) updated budgets relating to the Property, and (C) 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 “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or additional documentation does not impose material additional costs on Borrower opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware or Maryland (as applicable) and federal bankruptcy law relating to limited liability companies, true sale and any such amendment other opinion customary in Secondary Market Transactions or additional documentation does not materially adversely affect required by the rightsRating Agencies with respect to the Property, or materially increase Borrower and Borrower’s Affiliates, which counsel and opinions shall be satisfactory in form and substance to Lender and the obligationsRating Agencies;
(iii) provide updated, as of Borrower under the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may require; and
(iv) execute such amendments to the Loan Documents and Borrower’s or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies or rating agencies otherwise to effect any Secondary Market Transaction, including, without limitation, (A) to provide for a non-economic “golden member” and/or to amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan into two or more components and/or additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would change the interest rate, the stated maturity (except as provided in subclause (C) above) or the amortization of principal set forth herein, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the same initial weighted average coupon of the original Note. With respect to Borrower’s cooperation in connection with the rating foregoing provisions of the Loans or the Securitizationthis Section 11.1, Borrower shall pay its own costs and expenses up $10,000 and Lender shall (a) reimburse Borrower for Borrower’s initial (as opposed to ongoing), reasonable, demonstrable, out of pocket, third party costs and expenses exceeding $10,000 incurred as a direct result of such cooperation and (b) pay its own costs and expenses.
(c) providing a certificate Upon request, Borrower shall furnish to Lender from time to time such financial data and financial statements as Lender determines to be necessary, advisable or appropriate for complying with any applicable legal requirements (i) agreeing including those applicable to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the SecuritizationServicer (including, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party without limitation and to the Lender Partiers in connection with any Loan Document extent applicable, Regulation AB)) within the timeframes necessary, advisable or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary appropriate in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and comply with such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilitiesrequirements.
Appears in 4 contracts
Samples: Loan Agreement (Independence Realty Trust, Inc), Loan Agreement (Independence Realty Trust, Inc), Loan Agreement (Independence Realty Trust, Inc)
Securitization. In addition to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge (a) Borrower understands that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) through the pledge certain of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization Provided Information may be rated by a rating agency. The Loan Parties shall reasonably cooperate included in disclosure documents in connection with the Lender Parties to effect the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act or the Exchange Act, or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects.
(ab) amending this Agreement Borrower agrees to provide, and to cause Senior Mezzanine Borrower to cause Mortgage Borrower and to cause Guarantor to provide, in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification certificate (A) certifying that Borrower and Guarantor have carefully examined such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan), as applicable, including without limitation, the sections entitled “Special Considerations,” and/or “Risk Factors,” and “Certain Legal Aspects of the Mezzanine Loan,” or similar sections, and all sections relating to Borrower, Mortgage Borrower, Guarantor, Manager, their Affiliates, the Loan, the Loan Documents, the Collateral and executing the Properties, and any risks or special considerations relating thereto, and that, to the best of Borrower’s knowledge, such additional documentssections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (B) certifying that Mortgage Borrower and Guarantor have carefully examined such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan), as applicable, including without limitation, the sections entitled “Special Considerations,” and/or “Risk Factors,” and “Certain Legal Aspects of the Mortgage Loan,” or similar sections, and all sections relating to Borrower, Mortgage Borrower, Guarantor, Manager, their Affiliates, the Loan, the Loan Documents and the Properties, and any risks or special considerations relating thereto, and that, to the best of Borrower’s knowledge, such sections (and any other sections reasonably requested by requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the Lenders statements made, in connection with the Securitization; provided light of the circumstances under which they were made, not misleading, (C) indemnifying Lender (and for purposes of this Section 13.5, Lender hereunder shall include its officers and directors) and the Affiliate of Lender that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and has filed the registration statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect Person described in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify or (ii), an “Issuer Person”), and each director and officer of any Issuer Person, and each Person or entity who controls any Issuer Person within the Lender Parties, meaning of Section 15 of the Securities Act or any party providing credit support or otherwise participating in Section 20 of the Securitization, including any investors in a securitization entity Exchange Act (collectively, the “Securitization PartiesIssuer Group”), and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any such Person within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) Losses to which Lender, the Lender Parties Issuer Group or such Securitization Parties the Underwriter Group may become subject insofar as the Securitization Liabilities Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections (including any Loan Document Investor or in any writing delivered by Rating Agency “term sheets” or on behalf of any Loan Party presentations relating to the Lender Partiers in connection with any Loan Document Collateral, Properties and/or the Loan) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated thereinin such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Collateral, Properties and/or the Loan) or necessary in order to make the statements thereinin such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Collateral, Properties and/or the Loan) or in light of the circumstances under which they were made, not misleading (collectively the “Securities Liabilities”) and (D) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (C) or (D) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender or any member of the Issuer Group or Underwriter Group by or on behalf of Borrower, Mortgage Borrower or Guarantor in connection with the preparation of the memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Collateral, Properties and/or the Loan) or in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower, Mortgage Borrower or Guarantor, operating statements, rent rolls, environmental site assessment reports and property condition reports with respect to the Properties. This indemnity agreement will be in addition to any liability which Borrower, Mortgage Borrower and Guarantor may otherwise have. Moreover, the indemnification provided for in clauses (C) and (D) above shall be effective whether or not an indemnification certificate described in clauses (A) and (B) above is provided and shall be applicable based on information previously provided by Borrower, Mortgage Borrower and Guarantor or their Affiliates if Borrower, Mortgage Borrower or Guarantor do not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower agrees to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon an untrue statement in the Provided Information or the omission or alleged omission to state in the Provided Information a material fact required to be stated in the Provided Information in order to make the statements in the Provided Information, in light of the circumstances under which they were made not misleading and (ii) reimburse Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, the Issuer Group or the Underwriter Group in connection with defending or investigating the Securities Liabilities.
(d) Promptly after receipt by an indemnified party under this Section 13.5 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 13.5, notify the indemnifying party in writing of the commencement thereof, but the omission to so notify the indemnifying party will not relieve the indemnifying party from any liability which the indemnifying party may have to any indemnified party hereunder except to the extent that failure to notify causes prejudice to the indemnifying party. In the event that any action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it (or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. After notice from the indemnifying party to such indemnified party under this Section 13.5 the indemnifying party shall be responsible for any reasonable legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. The indemnifying party shall not be liable for the expenses of more than one such separate counsel unless an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another indemnified party.
(e) In order to provide for just and equitable contribution in circumstances in which the indemnity agreements provided for in Section 13.5(c) or Section 13.5(d) is or are for any reason held to be unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which would otherwise be indemnifiable under Section 13.5(c) or Section 13.5(d), the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages or liabilities (or action in respect thereof); provided, however, that no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s, Borrower’s and Guarantor’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation.
(f) Borrower shall, and shall cause Guarantor to, indemnify Lender and its officers, directors, partners, employees, representatives, agents and Affiliates against any Losses to which Lender and each of its officers, directors, partners, employees, representatives, agents and Affiliates, may become subject in connection with any indemnification to the Rating Agencies in connection with issuing, monitoring or maintaining the Securities insofar as the Losses arise out of or are based upon any untrue statement of any material fact in any information provided by or on behalf of Borrower to the Rating Agencies (the “Covered Rating Agency Information”) or arise out of or are based upon the omission to state a material fact in the Covered Rating Agency Information required to be stated therein or necessary in order to make the statements in the Covered Rating Agency Information, in light of the circumstances under which they were made, not misleading, .
(g) The liabilities and such indemnity obligations of Borrower and Lender under this Section 13.5 shall survive any transfer by the Lenders or their successors or assigns satisfaction of this Agreement and the satisfaction and discharge of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization LiabilitiesDebt.
Appears in 4 contracts
Samples: Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Securitization. In addition to any other assignment permitted pursuant to this Section, The Loan Parties hereby acknowledge that (x) the Lenders, Lenders and their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) through the pledge of the Loans as collateral security for loans to a Lender Party the Lenders or their Affiliates or through the sale of the Loans or the assignment or issuance of direct or indirect interests in the Loans (such asLoans, for instance, collateralized loan obligations), and (y) such Securitization may which loans to the Lenders or their Affiliates or direct or indirect interests will be rated by a Xxxxx’x, Standard & Poor’s or one or more other rating agencyagencies (the “Rating Agencies”). The Loan Parties shall reasonably cooperate with the Lender Parties Lenders and their Affiliates to effect the Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; , provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower the Loan Parties and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower the Loan Parties under the Loan Documents or change or affect in a manner adverse to Borrower the Loan Parties the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing in connection with any rating of the Loans a certificate (i) agreeing to indemnify the Lender PartiesLenders and their Affiliates, any of the Rating Agencies, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity Securitization (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers Lenders in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, Loans and (ii) agreeing to reimburse the Lender Parties Lenders and the other Securitization Parties their Affiliates for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilities.
Appears in 3 contracts
Samples: Credit Agreement (Imperial Petroleum Inc), Financing Agreement (Oglebay Norton Co /Ohio/), Financing Agreement (Gordon Biersch Brewery Restaurant Group, Inc.)
Securitization. In addition to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge (a) Borrower understands that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) through the pledge certain of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization Provided Information may be rated by a rating agency. The Loan Parties shall reasonably cooperate included in disclosure documents in connection with the Lender Parties to effect the Securitization Securitization, including, without limitation, by a prospectus, prospectus supplement or private placement memorandum (aeach, a “Disclosure Document”) amending this Agreement and may also be included in filings with the other Loan DocumentsSecurities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and executing such additional documentsservice providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, as reasonably requested Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Lenders Disclosure Document accurate and complete in all material respects, and otherwise to enable Lender to comply with applicable laws regarding disclosure.
(b) The Indemnifying Persons agree to provide, in connection with the Securitization; provided , an indemnification agreement certifying that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and the Indemnifying Persons have carefully examined the Disclosure Documents, (ii) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any such amendment Provided Information or additional documentation does any information regarding the Properties, Borrower, Manager and/or the Loan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not materially adversely affect contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the rightsstatements made, or materially increase in the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms light of the Loanscircumstances under which they were made, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitizationnot misleading, and (ciii) providing a certificate (i) agreeing to indemnify the jointly and severally indemnifying Lender Parties, or and any party providing credit support or otherwise participating Affiliate of Lender involved in the Securitization, including any investors in a securitization entity Securitization (collectively, the “Securitization PartiesIndemnified Persons”) ), for any losses, claims, damages damages, liabilities, costs or liabilities expenses (including without limitation legal fees and expenses for enforcement of these obligations (collectively, the “Securitization Liabilities”) to which the Lender Parties or any such Securitization Parties Indemnified Person may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state therein in the Covered Disclosure Information a material fact required to be stated therein, therein or necessary in order to make the statements thereinin the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilities.
Appears in 3 contracts
Samples: Loan Agreement (Highlands REIT, Inc.), Loan Agreement (Highlands REIT, Inc.), Loan Agreement (Inland American Real Estate Trust, Inc.)
Securitization. In addition to any other assignment permitted pursuant to this Section, The Loan Parties hereby acknowledge that (x) the Lenders, Lenders and their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “"Securitization”") through the pledge of the Loans as collateral security for loans to a Lender Party the Lenders or their Affiliates or through the sale of the Loans or the assignment or issuance of direct or indirect interests in the Loans (such asLoans, for instance, collateralized loan obligations), and (y) such Securitization may which loans to the Lenders or their Affiliates or direct or indirect interests will be rated by a Xxxxx'x, Standard & Poor's or one or more other rating agencyagencies (the "Rating Agencies"). The Loan Parties shall reasonably cooperate with the Lender Parties Lenders and their Affiliates to effect the Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; , provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower the Loan Parties and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower the Loan Parties under the Loan Documents or change or affect in a manner adverse to Borrower the Loan Parties the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing in connection with any rating of the Loans a certificate (i) agreeing to indemnify the Lender PartiesLenders and their Affiliates, any of the Rating Agencies, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity Securitization (collectively, the “"Securitization Parties”") for any losses, claims, damages or liabilities (the “Securitization "Liabilities”") to which the Lender Parties Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers Lenders in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, Loans and (ii) agreeing to reimburse the Lender Parties Lenders and the other Securitization Parties their Affiliates for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilities.
Appears in 3 contracts
Samples: Financing Agreement (Oglebay Norton Co /Ohio/), Financing Agreement (Allied Holdings Inc), Financing Agreement (Solutia Inc)
Securitization. In addition to The Borrower hereby acknowledges that the Lenders and any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, of their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans Obligations (a “"Securitization”") through the pledge of the Loans Obligations as collateral security for loans to a Lender Party such Lenders or their Affiliates or through the sale of the Obligations or the assignment or issuance of direct or indirect interests in the Loans (Obligations, which loans to such as, for instance, collateralized loan obligations), and (y) such Securitization may Lenders or their Affiliates or direct or indirect interests will be rated by a Xxxxx'x, Standard & Poor's or one or more other rating agencyagencies (the "Rating Agencies"). The Loan Parties Borrower shall cooperate reasonably cooperate with the Lender Parties such Lenders and their Affiliates to effect the Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders such Lenders, in connection with the Securitization; , provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and the Borrower, (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations (including administrative duties or reporting obligations), of the Borrower under the Loan Credit Documents or change or affect in a manner adverse to the Borrower the financial terms of the LoansObligations, and (b) providing such information as may be reasonably requested by the Lenders or rating agencies such Lenders, in connection with the rating of the Loans Obligations or the Securitization, and (c) providing in connection with any rating of the Obligations, a certificate (i) agreeing to indemnify such Lenders and any of their Affiliates, any of the Lender PartiesRating Agencies, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity Securitization (collectively, the “"Securitization Parties”") for any losses, claims, damages or liabilities (the “Securitization "Liabilities”") to which the Lender Parties such Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Credit Document or in any writing delivered by or on behalf of any Loan Party the Borrower and its respective Affiliates to the Lender Partiers Agent or one or more Lenders in connection with any Loan Credit Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, misleading and such indemnity shall survive any transfer by the such Lenders or their successors or assigns of the LoansObligations, and (ii) agreeing to reimburse the Lender Parties such Lenders and the any of their Affiliates and other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilities; and (d) providing such information regarding the Borrower, the Guarantors, the Collateral and other property, assets and business of the Borrower and the Guarantors (including appraisals and valuations) as may be reasonably requested by such Lenders or their successors or assignees.
Appears in 3 contracts
Samples: Credit Agreement (Chiquita Brands International Inc), Credit Agreement (Chiquita Brands International Inc), Credit Agreement (Chiquita Brands International Inc)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization. The transactions referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge of the Loans as collateral security for loans market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans (such asmarketplace or by the Rating Agencies in connection with any Secondary Market Transactions, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by to:
(ai) amending this Agreement provide (A) updated financial and other information with respect to the Property, the business operated at the Property, the Collateral, Pledgor, Borrower, Additional Obligor, Sponsor, SPE Component Entity, DDR and Manager, and (B) updated budgets relating to the Property (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Lender as to substantive non-consolidation, matters of Delaware and federal bankruptcy law relating to limited liability companies and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, the Collateral, Property Documents, Ground Lease, Condominium Documents, Borrower, Pledgor, Additional Obligor and any other Borrower Properties and Borrower’s Affiliates, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents; and
(iv) execute such amendments to the Loan Documents, the Property Documents, the Ground Lease, the Condominium Documents and executing such additional documentsBorrower’s, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) Pledgor’s, Additional Obligor’s or any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies or rating agencies otherwise to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) to establish different interest rates and to reallocate the principal balances of the Loan and the Mezzanine Loans amongst each other, (C) further bifurcating the Loan into additional components and/or additional separate notes and/or creating additional senior/subordinate note structure(s), reallocating the Loan amongst the Components, creating and eliminating components of the Loan (including creating a B-Note) (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would (i) increase Borrower’s liability or decrease Borrower’s rights under the Loan Documents, or (ii) change the interest rate, the stated maturity (except as provided in subclause (C) above) or the amortization of principal set forth herein, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the same initial weighted average coupon of the original Note (except following an Event of Default, prepayment following a Casualty or Condemnation or any principal payments received on the Loan). Provided there exists no Event of Default, from and after the completion of the Spinoff Transaction in accordance with this Agreement, Lender shall only be entitled to complete a Loan Bifurcation or Uncrossing Event if (i) it has provided to Borrower at least thirty (30) days’ prior written notice of such Loan Bifurcation or Uncrossing Event and (ii) Lender has not received written notice from Borrower, within such thirty (30) day period, that Borrower or Sponsor has received written tax advice from a nationally recognized accounting firm reasonably acceptable to Lender that such Loan Bifurcation or Uncrossing Event “would more likely than not” (x) result in material cancellation of indebtedness income for tax purposes for Borrower, Sponsor or any Taxable REIT Subsidiary or (y) cause a material risk that Sponsor would fail to qualify as a REIT, provided that Borrower shall provide to Lender a copy of such written tax advice. Notwithstanding the foregoing, (I) Lender may complete a Loan Bifurcation or Uncrossing Event in its sole discretion and without notice to or consent of Borrower at any time prior to May 1, 2018 and (II) nothing herein shall prohibit or restrict any Lender from selling, participating or otherwise transferring its Note (or any portion thereof or interest therein).
(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 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, 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 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 rating preparation of the Loans or Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (cC) providing 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 certificate filing pursuant to the Exchange Act in connection with or relating to the Securitization (ian “Exchange Act Filing”) agreeing is not required. If requested by Lender, Borrower shall furnish to indemnify Lender financial data and/or financial statements for any tenant of the Property that is available to Borrower (or Borrower if permitted to request) and which Borrower has the right to share with third parties if, in connection with a Securitization, Lender Partiesexpects 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.
(d) All financial data and statements provided by Borrower hereunder 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 this Section 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 statements (audited or unaudited) provided by Borrower under this Section shall be accompanied by an Officer’s Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (d).
(e) If requested by Lender, Borrower shall provide Lender, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall determine to be required pursuant to Regulation AB or any party providing credit support amendment, modification or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages replacement thereto or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers other legal requirements in connection with any Loan Disclosure Document or arise out of any Exchange Act Filing or as shall otherwise be reasonably requested by Lender if the same are based upon available (or under the omission or alleged omission to state therein control of) Borrower, any other Borrower Party and/or their respective Affiliates.
(f) In the event Lender determines, in connection with a material fact Securitization, that the financial data and financial statements required to be stated therein, or necessary in order to make comply with Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the statements thereinprovisions of this Section, in light of the circumstances under which they were made, not misleadingLender may request, and Borrower shall promptly provide (and shall cause each other Borrower Party to provide), such indemnity shall survive any transfer by the Lenders other financial data and financial statements as Lender reasonably determines to be necessary or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties appropriate for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilitiescompliance.
Appears in 3 contracts
Samples: Loan Agreement (Retail Value Inc.), Loan Agreement (Retail Value Inc.), Loan Agreement (DDR Corp)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization (including a collateralized debt obligation (CDO) securitization). The transactions referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge of the Loans as collateral security for loans market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans (such asmarketplace by prospective investors, for instancetransferees, collateralized loan obligations)lenders and/or participants or by the Rating Agencies in connection with any Secondary Market Transactions, and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, to:
(i) provide or cause Mortgage Borrower and/or Mezzanine A Borrower to (A) provide updated financial and other information with respect to the Properties, the Applicable Collateral, the business operated at the Properties, Borrower, Mortgage Borrower, Mezzanine A Borrower, Mezzanine C Borrower, Guarantor, Sponsor, each Applicable SPE Component Entity and Manager, and updated budgets relating to the Property, which (in each case) are available or reasonably obtainable using systems of Borrower and Manager that are currently in place (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and acceptable to the Rating Agencies, (B) 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 Properties and (C) use commercially reasonable efforts to obtain revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies;
(ii) provide new and/or updated opinions of counsel, which may be relied upon by (a) amending this Agreement Lender and the other Rating Agencies, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies with respect to Borrower, Mortgage Borrower, any Mezzanine Borrower and the Applicable SPE Component Entities and due execution and enforceability of the Loan Documents, customary in Secondary Market Transactions or required by the Rating Agencies, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and satisfactory in form and substance to the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may require, in each case consistent with the facts covered by such representations and warranties as they exist on the date thereof;
(iv) execute such amendments to the Loan Documents, the Mezzanine Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Mortgage Loan Documents and Borrower’s, Mezzanine Borrower’s, Mortgage Borrower’s and any Operating Lessee Pledgor’s or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies in order to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) further bifurcating the Loan into two or rating agencies more additional components, re-allocating the Loan among existing components or existing Notes, reducing the number of components of the Loan or of any Note and/or creating additional separate notes and/or creating additional senior/subordinate note structure(s), including, without limitation, re-allocating the principal amounts of the Loan, the Note and any Mezzanine Loan, including, without limitation, re-allocating the portions of each of the Loan and/or any Mezzanine Loan that accrue at a fixed rate of interest and that accrue at a floating rate of interest and/or re-allocating the portion of the Loan and any Mezzanine Loan which is subject to open prepayment in accordance with the terms and conditions of the Loan Documents (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that (I) Borrower and/or Guarantor shall not be required to so modify or amend any Loan Document, Mortgage Loan Document or Mezzanine Loan Document if such modification or amendment would change any economic or non-economic term, including the interest rate or the stated maturity (except as would not have an adverse effect on Borrower, Guarantor and/or any of their Affiliates other than to a de minimus extent) or otherwise increase the obligations (other than to a de minimus extent) or decrease the rights of Borrower or any Affiliates pursuant to the Loan Documents, Mortgage Loan Documents or Mezzanine Loan Documents (other than to a de minimus extent), except in connection with a Loan Bifurcation which may result in varying interest rates but will have the same weighted average coupon of the original Note (except following an Event of Default) and (II) none of Borrower, Mortgage Borrower, any Mezzanine Borrower, any Operating Lessee Pledgor nor any SPE Component Entity shall be required to modify its organizational structure or make any other modification, if such modification would cause it or any of its Affiliates or direct or indirect owners to incur any additional tax liability or suffer other adverse consequences (other than to a de minimus extent). Borrower acknowledges and agrees that the execution of any Loan Bifurcation in accordance with terms and conditions hereof shall not in itself increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents; and
(v) prior to the Securitization of the entire Loan, reallocate the Allocated Loan Amounts in Lender’s reasonable discretion and reasonably approved by Borrower, such reasonable approval not to be unreasonably withheld, conditioned or delayed. Notwithstanding anything herein to the contrary, with respect to any compliance by any Borrower Party with requests made pursuant to this Section 11.1 or any of Sections 11.2, 11.8 and 11.9 with respect to any Secondary Market Transaction, each Borrower Party shall pay their own costs and expenses incurred prior to the consummation of the corresponding Secondary Market Transaction in connection therewith (including, without limitation, attorneys’ fees and expenses) and Lender shall pay its own costs and expenses in connection therewith (including, without limitation, attorneys’ fees and expenses); provided that Lender shall reimburse the Borrower Parties for any reasonable, out-of-pocket costs incurred by the Borrower Parties prior to the consummation of the corresponding Secondary Market Transaction in Borrower’s complying with such requests (exclusive of the Borrower Parties’ legal fees, costs and disbursements, which shall be paid by the Borrower Parties and exclusive of all of Borrower’s costs and expenses with respect to Section 11.1(b)(v) hereof, which shall be paid by the Borrower Parties).
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably expects that Borrower 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 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 equal or exceed ten percent (10%), but be 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 as required under 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.
(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, and if Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and the 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) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of Securities under Regulation AB or applicable Legal Requirements.
(e) Any financial data or financial statements required pursuant to Section 11.1(d) above shall be furnished to Lender (1) not later than forty-one (41) days after the end of the fiscal quarter of Borrower and (2) not later than eighty-five (85) days after the end of each fiscal year of Borrower.
(f) If requested by Lender, Borrower shall provide Lender, promptly 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 five (5) Business Days following notice from Lender), with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization.
(g) All financial data and statements provided by Borrower hereunder in connection with a Securitization shall meet (and shall be accompanied by such auditors’ reports or consents and such certificates as may be necessary to comply with) the requirements of Regulation AB and other Legal Requirements, in each case to the extent applicable and as specified by Lender.
(h) Provided that no Event of Default has occurred and is continuing, Lender agrees that it shall not sell any portion of the Loan or participation interest therein (excluding any note, certificate or other instrument issued in a Securitization) to an Excluded Entity in connection with the rating initial sale thereof. For the avoidance of the Loans doubt, Borrower’s rights under this Section do not apply to any sale of Securities or the Securitizationsimilar certificated instruments, and (c) providing apply solely to the initial sale of a certificate note, participation or mezzanine interest and not any subsequent resale thereof. Lender shall be entitled to rely on a representation from a transferee that such transferee is not an Excluded Entity without any need for independent investigation.
(i) agreeing Notwithstanding anything to indemnify the Lender Partiescontrary contained herein, the provisions regarding the delivery of REMIC Opinions and satisfaction of REMIC Requirements will only apply if all or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light portion of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization LiabilitiesLoan has been securitized.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.), Mezzanine Loan Agreement (Northstar Realty Finance Corp.)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization (including a collateralized debt obligation (CDO) securitization). The transactions referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge of the Loans as collateral security for loans market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans (such asmarketplace by prospective investors, for instancetransferees, collateralized loan obligations)lenders and/or participants or by the Rating Agencies in connection with any Secondary Market Transactions, and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, to:
(i) provide or cause Mortgage Borrower, Mezzanine A Borrower and/or Mezzanine B Borrower, to (A) provide updated financial and other information with respect to the Properties, the Applicable Collateral, the business operated at the Properties, Borrower, Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Guarantor, Sponsor, each Applicable SPE Component Entity and Manager, and updated budgets relating to the Property, which (in each case) are available or reasonably obtainable using systems of Borrower and Manager that are currently in place (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and acceptable to the Rating Agencies, (B) 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 Properties and (C) use commercially reasonable efforts to obtain revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies;
(ii) provide new and/or updated opinions of counsel, which may be relied upon by (a) amending this Agreement Lender and the other Rating Agencies, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies with respect to Borrower, Mortgage Borrower, any Mezzanine Borrower and the Applicable SPE Component Entities and due execution and enforceability of the Loan Documents, customary in Secondary Market Transactions or required by the Rating Agencies, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and satisfactory in form and substance to the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may require, in each case consistent with the facts covered by such representations and warranties as they exist on the date thereof;
(iv) execute such amendments to the Loan Documents, the Mezzanine Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Mortgage Loan Documents and Borrower’s, Mezzanine Borrower’s, Mortgage Borrower’s and any Operating Lessee Pledgor’s or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies in order to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) further bifurcating the Loan into two or rating agencies more additional components, re-allocating the Loan among existing components or existing Notes, reducing the number of components of the Loan or of any Note and/or creating additional separate notes and/or creating additional senior/subordinate note structure(s), including, without limitation, re-allocating the principal amounts of the Loan, the Note and any Mezzanine Loan, including, without limitation, re-allocating the portions of each of the Loan and/or any Mezzanine Loan that accrue at a fixed rate of interest and that accrue at a floating rate of interest and/or re-allocating the portion of the Loan and any Mezzanine Loan which is subject to open prepayment in accordance with the terms and conditions of the Loan Documents (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that (I) Borrower and/or Guarantor shall not be required to so modify or amend any Loan Document, Mortgage Loan Document or Mezzanine Loan Document if such modification or amendment would change any economic or non-economic term, including the interest rate or the stated maturity (except as would not have an adverse effect on Borrower, Guarantor and/or any of their Affiliates other than to a de minimus extent) or otherwise increase the obligations (other than to a de minimus extent) or decrease the rights of Borrower or any Affiliates pursuant to the Loan Documents, Mortgage Loan Documents or Mezzanine Loan Documents (other than to a de minimus extent), except in connection with a Loan Bifurcation which may result in varying interest rates but will have the same weighted average coupon of the original Note (except following an Event of Default) and (II) none of Borrower, Mortgage Borrower, any Mezzanine Borrower, any Operating Lessee Pledgor nor any SPE Component Entity shall be required to modify its organizational structure or make any other modification, if such modification would cause it or any of its Affiliates or direct or indirect owners to incur any additional tax liability or suffer other adverse consequences (other than to a de minimus extent). Borrower acknowledges and agrees that the execution of any Loan Bifurcation in accordance with terms and conditions hereof shall not in itself increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents; and
(v) prior to the Securitization of the entire Loan, reallocate the Allocated Loan Amounts in Lender’s reasonable discretion and reasonably approved by Borrower, such reasonable approval not to be unreasonably withheld, conditioned or delayed. Notwithstanding anything herein to the contrary, with respect to any compliance by any Borrower Party with requests made pursuant to this Section 11.1 or any of Sections 11.2, 11.8 and 11.9 with respect to any Secondary Market Transaction, each Borrower Party shall pay their own costs and expenses incurred prior to the consummation of the corresponding Secondary Market Transaction in connection therewith (including, without limitation, attorneys’ fees and expenses) and Lender shall pay its own costs and expenses in connection therewith (including, without limitation, attorneys’ fees and expenses); provided that Lender shall reimburse the Borrower Parties for any reasonable, out-of-pocket costs incurred by the Borrower Parties prior to the consummation of the corresponding Secondary Market Transaction in Borrower’s complying with such requests (exclusive of the Borrower Parties’ legal fees, costs and disbursements, which shall be paid by the Borrower Parties and exclusive of all of Borrower’s costs and expenses with respect to Section 11.1(b)(v) hereof, which shall be paid by the Borrower Parties).
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably expects that Borrower 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 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 equal or exceed ten percent (10%), but be 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 as required under 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.
(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, and if Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and the 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) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of Securities under Regulation AB or applicable Legal Requirements.
(e) Any financial data or financial statements required pursuant to Section 11.1(d) above shall be furnished to Lender (1) not later than forty-one (41) days after the end of the fiscal quarter of Borrower and (2) not later than eighty-five (85) days after the end of each fiscal year of Borrower.
(f) If requested by Lender, Borrower shall provide Lender, promptly 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 five (5) Business Days following notice from Lender), with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization.
(g) All financial data and statements provided by Borrower hereunder in connection with a Securitization shall meet (and shall be accompanied by such auditors’ reports or consents and such certificates as may be necessary to comply with) the requirements of Regulation AB and other Legal Requirements, in each case to the extent applicable and as specified by Lender.
(h) Provided that no Event of Default has occurred and is continuing, Lender agrees that it shall not sell any portion of the Loan or participation interest therein (excluding any note, certificate or other instrument issued in a Securitization) to an Excluded Entity in connection with the rating initial sale thereof. For the avoidance of the Loans doubt, Borrower’s rights under this Section do not apply to any sale of Securities or the Securitizationsimilar certificated instruments, and (c) providing apply solely to the initial sale of a certificate note, participation or mezzanine interest and not any subsequent resale thereof. Lender shall be entitled to rely on a representation from a transferee that such transferee is not an Excluded Entity without any need for independent investigation.
(i) agreeing Notwithstanding anything to indemnify the Lender Partiescontrary contained herein, the provisions regarding the delivery of REMIC Opinions and satisfaction of REMIC Requirements will only apply if all or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light portion of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization LiabilitiesLoan has been securitized.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.), Mezzanine Loan Agreement (Northstar Realty Finance Corp.)
Securitization. In addition to Each Borrower hereby acknowledges that the Lender and any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their of its Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) through the pledge of the Loans as collateral security for loans to a the Lender Party or its Affiliates or through the sale of the Loans or the assignment or issuance of direct or indirect interests in the Loans (such asLoans, for instance, collateralized loan obligations), and (y) such Securitization may which loans to the Lender or its Affiliate or direct or indirect interests will be rated by a Xxxxx’x, Standard & Poor’s or one or more other rating agencyagencies (the “Rating Agencies”). The Loan Parties Each Borrower shall reasonably cooperate with the Lender Parties and its Affiliates to effect the Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders Lender in connection with the Securitization; , provided that (i) any such amendment or additional documentation does not impose material additional costs on any Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of any Borrower under the Loan Documents or change or affect in a manner adverse to any Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies Lender in connection with the rating of the Loans or the Securitization, and (c) providing in connection with any rating of the Loans a certificate (i) agreeing to indemnify the Lender Partiesand any of its Affiliates, any of the Rating Agencies, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity Securitization (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties Lender, its Affiliates or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party Borrower and its Affiliates to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, misleading and such indemnity shall survive any transfer by the Lenders Lender or their its successors or assigns of the Loans, Loans and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties any of its Affiliates for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilities.
Appears in 2 contracts
Samples: Financing Agreement (Enherent Corp), Financing Agreement (Enherent Corp)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization. The transactions referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market Transactions”, the transactions referred to in clause (i) shall hereinafter be referred to as a “Syndication”, and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”) through the pledge of the Loans as collateral security for loans to a Lender Party . Any certificates, notes or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders securities issued in connection with the Securitization; provided that a Securitization are hereinafter referred to as “Securities”.
(ib) any such amendment or additional documentation does not impose material additional costs on If requested by Lender, Borrower and Guarantor 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 in connection with any Secondary Market Transactions (ii) but in no event shall such cooperation result in any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, in any obligations of Borrower or rights of Lender or decrease in any rights of Borrower or obligations of Lender under the Loan Documents or change in any of the economic or affect monetary provisions of the Loan or the Loan Documents and not result in a manner adverse any “rate creep” under the Loan Agreement (other than due to the occurrence and continuance of an Event of Default), Borrower acknowledging and agreeing that Borrower and/or Guarantor complying with requests by Lender pursuant to, and in accordance with, this Section 11.1 in and of itself shall not be deemed to increase any obligations of Borrower or decrease any rights of Borrower)), provided Lender shall reimburse Borrower and Guarantor for any reasonable, out-of-pocket costs and expenses incurred by Borrower and/or Guarantor in connection with compliance with the terms and provisions of Section 11.1(b). Suchcooperation shall, include, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, SPE Component Entity and any Affiliated Manager, and updated budgets relating to the Property, which (in each case) are available or reasonably obtainable using systems of Borrower that are currently in place (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and acceptable to the Rating Agencies, and (B) 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, as requested by the Rating Agencies in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies;
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Lender and the Rating Agencies, as to substantive non-consolidation, matters of Delaware and federal bankruptcy law relating to limited liability companies with respect to Borrower the financial terms and SPE Component Entities and due execution and enforceability of the LoansLoan Documents, customary in Secondary Market Transactions or required by the Rating Agencies, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and satisfactory in form and substance to the Rating Agencies;
(biii) providing provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents consistent with the facts covered by such information representations and warranties as they exist on the date thereof; and
(iv) execute such amendments to the Loan Documents and Borrower’s or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies in order to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan into two or rating agencies more components, re-allocating the Loan among existing components or existing Notes, reducing the number of components of the Loan or of any Note and/or creating additional separate notes and/or creating additional senior/subordinate note structure(s), including, without limitation, re-allocating the principal amounts of the Loan (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative monthly payment dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that (I) Borrower and/or Guarantor shall not be required to so modify or amend any Loan Document if such modification or amendment would change any economic or non-economic term, including the interest rate or the stated maturity (except as would not have an adverse effect on Borrower, Guarantor and/or any of their Affiliates) or otherwise increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents or increase the rights or reduce the obligations of Lender, except in connection with a Loan Bifurcation which may result in varying fixed interest rates but will have the rating same weighted average coupon of the Loans original Note throughout the term (i.e., there shall be no “rate creep”) (except following an Event of Default) and (II) none of Borrower nor any SPE Component Entity shall be required to modify its organizational structure or make any other modification, if such modification would cause it or any of its Affiliates or direct or indirect owners to incur any additional tax liability or suffer other adverse consequences. Borrower and Lender acknowledge and agree that the Securitization, execution of any Loan Bifurcation in accordance with terms and conditions hereof shall not in itself increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents.
(c) providing If, at the time a certificate Disclosure Document is being prepared for a Securitization, Lender reasonably expects that Borrower 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:
(i) agreeing 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 ten percent (10%), but be less than twenty percent (20%), of the aggregate principal amount of all mortgage loans included or expected to indemnify the Lender Parties, or any party providing credit support or otherwise participating be included in the Securitization, including net operating income for the Property and the Related Properties or selected financial data as required under Item 1112(b)(1) of Regulation AB, or
(ii) If Lender reasonably expects that the principal amount of the Loan together with any investors 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.
(d) In the event all or a portion of the Loan is included in a securitization entity (Securitization involving a registered public offering of Securities pursuant to the Securities Act, and if Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the “Securitization Parties”) for any lossesProperty alone or the Property and the Related Properties, claimscollectively, damages or liabilities (the “Securitization Liabilities”) are a Significant Obligor, then Borrower shall furnish to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue Lender, on an ongoing basis, a statement of any material fact contained in any Loan Document net operating income for the Property or in any writing delivered Related Properties or 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 on behalf of any Loan Party entities are a Significant Obligor and either (x) filings pursuant to the Lender Partiers Exchange Act in connection with any Loan Document or arise out of or relating to the Securitization (an “Exchange Act Filing”) are based upon the omission or alleged omission to state therein a material fact required to be stated thereinmade under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of Securities under Regulation AB or applicable Legal Requirements.
(e) Any financial data or financial statements required pursuant to Section 11.1(d) above shall be furnished to Lender (1) with respect to quarterly reporting, not later than forty-one (41) days after the end of the fiscal quarter of Borrower and (2) with respect to all other reporting, no later than five (5) Business Days prior to the date required pursuant to Regulation AB.
(f) If requested by Lender, Borrower shall provide Lender, promptly 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 five (5) Business Days following notice from Lender), with any other or additional financial statements, or necessary in order financial, statistical or operating information, as Lender shall reasonably determine to make the statements thereinbe required pursuant to Regulation AB, in light of the circumstances under which they were madeor any amendment, not misleading, and such indemnity shall survive any transfer by the Lenders modification or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal replacement thereto or other expenses reasonably incurred Legal Requirements relating to a Securitization.
(g) All financial data and statements provided by such Persons Borrower hereunder in connection with defending a Securitization shall meet (and shall be accompanied by such auditors’ reports or consents and such certificates as may be necessary to comply with) the Securitization Liabilitiesrequirements of Regulation AB and other Legal Requirements, in each case to the extent applicable and as specified by Lender.
(h) Notwithstanding anything to the contrary in this Agreement, but subject to Section 11.5, Borrower shall not be (and Lender shall be) responsible for any reasonable, out-of-pocket costs incurred by Borrower due to its compliance with the terms and provisions of Section 11.1 and the deliveries required to be made by Borrower and Guarantor pursuant to Section 11.2(c).
Appears in 2 contracts
Samples: Loan Agreement (American Realty Capital New York City REIT, Inc.), Loan Agreement (American Realty Capital New York City REIT, Inc.)
Securitization. In addition Lender, at its option, may elect to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (effect a “Securitization”) through the pledge securitization of the Loans as collateral security for loans to a Lender Party or Loan by means of the assignment or issuance of direct certificates of interest therein or indirect interests notes secured thereby (the "Securities") rated by one or more Rating Agencies (the "Securitization"). In such event and upon request by Lender to seek to effect such a Securitization, Borrower shall, subject to the restrictions on disclosure set forth in Section 8.27, promptly thereafter
(i) certifying that Borrower has carefully examined such private placement memorandum or registration statement, as applicable, including the Loans sections entitled "Special Considerations", "Description of the Loan and the Underlying Properties", "Operator", "The Borrower" and "Certain Legal Aspects of the Loan" (such as, for instance, collateralized loan obligationsor similarly titled sections), and that such Sections (yand any other Sections reasonably requested), insofar as they relate solely to Borrower, its Affiliates, the Loan or (to Borrower's knowledge) such Securitization may be rated by the Collateral, do not contain any untrue statement of a rating agency. The Loan Parties shall reasonably cooperate with material fact or omit to state a material fact necessary in order to make the Lender Parties to effect statements made, in the Securitization includinglight of the circumstances under which they were made, without limitationnot misleading, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectivelyindemnifying Lender, the “Securitization Parties”) underwriter or placement agent and any of their Affiliates for any losses, claims, damages or liabilities (the “Securitization "Liabilities”") to which the Lender Parties or such Securitization Parties parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact relating to Borrower, its Affiliates, the Loan or the Collateral contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document such Sections or arise out of or are based upon the omission or alleged omission to state therein a material fact relating to Borrower, its Affiliates, the Loan or (to Borrower's knowledge) the Collateral required to be stated therein, therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, misleading and (iiiii) agreeing to reimburse the Lender Parties and the other Securitization Parties such parties for any legal or other expenses reasonably incurred by such Persons parties in connection with investigating or defending the Liabilities, (d) causing to be rendered (at Lender's expense) such customary and reasonable opinion letters as may be requested by and satisfactory to any Rating Agency including substantive nonconsolidation opinion letters and an opinion letter from local counsel to the Borrower stating that the assignment of the Loan and the Loan Documents to a trustee in connection with the Securitization Liabilitiesis enforceable, (e) making such customary and reasonable representations, warranties and covenants with respect to the Borrower, and the members of the Borrower Control Group, as may be requested by any Rating Agency, (f) providing such information regarding the Collateral and Borrower, members of the Borrower Control Group, and their respective Affiliates as may be reasonably requested by a Rating Agency or potential investors in Securities or otherwise reasonably required in connection with an election of REMIC or FASIT or other tax status and ongoing administration and reporting by any trust formed in connection with the Securitization, (g) amending Borrower's organizational documents or making such other reasonable changes to the structure of Borrower or such of its partners or members or shareholders as may be required by any Rating Agency to conform to requirements customarily imposed in similar transactions, and (h) obtaining a comfort letter (in customary form and containing customary exceptions) from a nationally recognized accounting firm in connection with financial information relating to Borrower and the members of the Borrower Control Group and which is, in connection with the Securitization, presented in a private placement memorandum or prospectus. In no event shall Borrower be required to pay any Rating Agency or other fees or expenses or be required to pay any costs or expenses whatsoever in connection with any such Securitization other than the overhead and internal costs incurred by Borrower in cooperating in the manner described in clauses (a) through (h) above. Notwithstanding the provisions of this Section 8.34.3 to the contrary, neither Borrower nor any member of the Borrower Control Group shall be required to release or disclose any non-public information concerning any Entity, the securities of which are traded publicly, to any Person who has not furnished a confidentiality agreement.
Appears in 2 contracts
Samples: Loan Agreement (Lazard Freres Real Estate Investors LLC), Loan Agreement (Lazard Freres Real Estate Investors LLC)
Securitization. In addition to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge (a) Borrower understands that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) through the pledge certain of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization Provided Information may be rated by a rating agency. The Loan Parties shall reasonably cooperate included in disclosure documents in connection with the Lender Parties to effect the Securitization Securitization, including, without limitation, by a prospectus, prospectus supplement, offering memorandum or private placement memorandum (aeach, a “Disclosure Document”) amending this Agreement and may also be included in filings with the other Loan DocumentsSecurities and Exchange Commission pursuant to the Securities Act or the Exchange Act, or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and executing such additional documentsservice providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, as reasonably requested Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Lenders Disclosure Document accurate and complete in all material respects.
(b) Borrower agrees to provide, and to cause Guarantor to provide, in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency “term sheets” or presentations relating to the Securitization; provided Properties and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification certificate (A) certifying that Borrower and Guarantor have carefully examined such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan), as applicable, including without limitation, the sections entitled “Special Considerations,” and/or “Risk Factors,” and “Certain Legal Aspects of the Mortgage Loan,” or similar sections, and all sections relating to Borrower, Guarantor, Manager, their Affiliates, the Loan, the Loan Documents and the Properties, and any risks or special considerations relating thereto, and that, to the best of Borrower’s knowledge, such sections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (B) indemnifying Lender (and for purposes of this Section 13.5, Lender hereunder shall include its officers and directors) and the Affiliate of Lender that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and has filed the registration statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect Person described in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify or (ii), an “Issuer Person”), and each director and officer of any Issuer Person, and each Person or entity who controls any Issuer Person within the Lender Parties, meaning of Section 15 of the Securities Act or any party providing credit support or otherwise participating in Section 20 of the Securitization, including any investors in a securitization entity Exchange Act (collectively, the “Securitization PartiesIssuer Group”), and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any such Person within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) Losses to which Lender, the Lender Parties Issuer Group or such Securitization Parties the Underwriter Group may become subject insofar as the Securitization Liabilities Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections (including any Loan Document Investor or in any writing delivered by Rating Agency “term sheets” or on behalf of any Loan Party presentations relating to the Lender Partiers in connection with any Loan Document Properties and/or the Loan) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan) or necessary in order to make the statements therein, in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan) or in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by misleading (collectively the Lenders or their successors or assigns of the Loans, and (ii“Securities Liabilities”) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilities.and
Appears in 2 contracts
Samples: Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc)
Securitization. In addition to any other assignment permitted pursuant to this Section, Loan Parties The Borrower hereby acknowledge acknowledges that (x) the Lenders, Lenders and their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) through the pledge of the Loans as collateral security for loans to a Lender Party the Lenders or their Affiliates or through the sale of the Loans or the assignment or issuance of direct or indirect interests in the Loans (such asLoans, for instance, collateralized loan obligations), and (y) such Securitization may which loans to the Lenders or their Affiliates or direct or indirect interests will be rated by a Xxxxx’x, Standard & Poor’s or one or more other rating agencyagencies (the “Rating Agencies”). The Loan Parties Borrower shall reasonably cooperate with the Lender Parties Lenders and their Affiliates to effect the Securitization including, without limitation, including by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; , provided that (i) any such amendment or additional documentation does not impose material additional costs on the Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Borrower under the Loan Documents or change or affect in a manner adverse to the Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing in connection with any rating of the Loans a certificate (i) agreeing to indemnify the Lender PartiesLenders and their Affiliates, any of the Rating Agencies, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity Securitization (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the any Agent or Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, Loans and (ii) agreeing to reimburse the Lender Parties Agents, the Lenders and the other Securitization Parties their Affiliates for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilities.
Appears in 2 contracts
Samples: Financing Agreement (Metalico Inc), Financing Agreement (Gametech International Inc)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization. The transaction referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall, at Lender’s reasonable cost and expense, assist Lender in satisfying the pledge of the Loans as collateral security for loans market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans (such asmarketplace or by the Rating Agencies in connection with any Secondary Market Transactions, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; provided that to:
(i) any such amendment provide (A) updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, Sponsor, SPE Component Entity and Manager (if any), (B) updated budgets relating to the Property, and (C) 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 “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or additional documentation does not impose material additional costs on Borrower opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware or Maryland (as applicable) and federal bankruptcy law relating to limited liability companies, true sale and any such amendment other opinion customary in Secondary Market Transactions or additional documentation does not materially adversely affect required by the rightsRating Agencies with respect to the Property, or materially increase Borrower and Borrower’s Affiliates, which counsel and opinions shall be satisfactory in form and substance to Lender and the obligationsRating Agencies;
(iii) provide updated, as of Borrower under the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may require; and
(iv) execute such amendments to the Loan Documents and Borrower’s or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies or rating agencies otherwise to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan into two or more components and/or additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment (1) would change the interest rate, the stated maturity (except as provided in subclause (C) above) or the amortization of principal set forth herein, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the rating same initial weighted average coupon of the Loans original Note, or (2) materially increase Borrower’s obligations or decrease Borrower’s rights under the Securitization, and Loan Documents.
(c) providing a certificate Upon request, Borrower shall furnish to Lender from time to time such financial data and financial statements as Lender determines to be necessary, advisable or appropriate for complying with any applicable legal requirements (i) agreeing including those applicable to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the SecuritizationServicer (including, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party without limitation and to the Lender Partiers in connection with any Loan Document extent applicable, Regulation AB)) within the timeframes necessary, advisable or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary appropriate in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and comply with such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilitiesrequirements.
Appears in 2 contracts
Samples: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)
Securitization. In addition to any other assignment permitted pursuant to this Section, Loan Parties The Borrowers hereby acknowledge that (x) the Lenders, Lenders and any of their Affiliates and Approved Funds (“Lender Parties”) affiliates may sell or securitize the Loans Obligations (a “"Securitization”") through the pledge of the Loans Obligations as collateral security for loans to a Lender Party such Lenders or their affiliates or through the sale of the Obligations or the assignment or issuance of direct or indirect interests in the Loans (Obligations, which loans to such as, for instance, collateralized loan obligations), and (y) such Securitization may Lenders or their affiliates or direct or indirect interests will be rated by a Xxxxx'x, Standard & Poor's or one or more other rating agencyagencies (the "Rating Agencies"). The Loan Parties Borrowers shall cooperate reasonably cooperate with the Lender Parties such Lenders and their affiliates to effect the any such Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders such Lenders, in connection with the Securitization; , provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and the Borrowers, (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations (including administrative duties or reporting obligations), of Borrower the Borrowers under the Loan Credit Documents or change or affect in a manner adverse to Borrower the Borrowers the financial terms of the LoansObligations, and (b) providing such information as may be reasonably requested by the Lenders or rating agencies such Lenders, in connection with the rating of the Loans Obligations or the Securitization, and (c) providing in connection with any rating of the Obligations, a certificate (i) agreeing to indemnify such Lenders and any of their affiliates, any of the Lender PartiesRating Agencies, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity Securitization (collectively, the “"Securitization Parties”") for any losses, claims, damages or liabilities (the “Securitization "Liabilities”") to which the Lender Parties such Lenders, their affiliates or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Credit Document or in any writing delivered by or on behalf of any Loan Party the Borrowers and their respective affiliates to the Lender Partiers Agent or one or more Lenders in connection with any Loan Credit Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, misleading and such indemnity shall survive any transfer by the such Lenders or their successors or assigns of the LoansObligations, and (ii) agreeing to reimburse the Lender Parties such Lenders and the any of their affiliates and other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilities; and (d) providing such information regarding the Borrowers, the Guarantors, the Collateral and other property, assets and business of the Borrowers and the Guarantors (including appraisals and valuations) as may be reasonably requested by such Lenders or their successors or assignees.
Appears in 2 contracts
Samples: Credit Agreement (Chiquita Brands International Inc), Credit Agreement (Chiquita Brands International Inc)
Securitization. In addition to any other assignment permitted pursuant to this Section, Loan Parties The Borrowers hereby acknowledge that (x) the Lenders, Lenders and any of their Affiliates and Approved Funds (“Lender Parties”) affiliates may sell or securitize the Loans Obligations (a “Securitization”) through the pledge of the Loans Obligations as collateral security for loans to a Lender Party such Lenders or their affiliates or through the sale of the Obligations or the assignment or issuance of direct or indirect interests in the Loans (Obligations, which loans to such as, for instance, collateralized loan obligations), and (y) such Securitization may Lenders or their affiliates or direct or indirect interests will be rated by a Xxxxx’x, Standard & Poor’s or one or more other rating agencyagencies (the “Rating Agencies”). The Loan Parties Borrowers shall cooperate reasonably cooperate with the Lender Parties such Lenders and their affiliates to effect the any such Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders such Lenders, in connection with the Securitization; , provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and the Borrowers, (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations (including administrative duties or reporting obligations), of Borrower the Borrowers under the Loan Credit Documents or change or affect in a manner adverse to Borrower the Borrowers the financial terms of the LoansObligations, and (b) providing such information as may be reasonably requested by the Lenders or rating agencies such Lenders, in connection with the rating of the Loans Obligations or the Securitization, and (c) providing in connection with any rating of the Obligations, a certificate (i) agreeing to indemnify such Lenders and any of their affiliates, any of the Lender PartiesRating Agencies, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity Securitization (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties such Lenders, their affiliates or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Credit Document or in any writing delivered by or on behalf of any Loan Party the Borrowers and their respective affiliates to the Lender Partiers Agent or one or more Lenders in connection with any Loan Credit Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, misleading and such indemnity shall survive any transfer by the such Lenders or their successors or assigns of the LoansObligations, and (ii) agreeing to reimburse the Lender Parties such Lenders and the any of their affiliates and other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilities; and (d) providing such information regarding the Borrowers, the Guarantors, the Collateral and other property, assets and business of the Borrowers and the Guarantors (including appraisals and valuations) as may be reasonably requested by such Lenders or their successors or assignees.
Appears in 2 contracts
Samples: Credit Agreement (Chiquita Brands International Inc), Credit Agreement (Chiquita Brands International Inc)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization (including a collateralized debt obligation (CDO) securitization). The transactions referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge of the Loans as collateral security for loans market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans (such asmarketplace by prospective investors, for instancetransferees, collateralized loan obligations)lenders and/or participants or by the Rating Agencies in connection with any Secondary Market Transactions, and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, to:
(i) provide or cause Mortgage Borrower to (A) provide updated financial and other information with respect to the Properties, the Collateral, the business operated at the Properties, Borrower, Mortgage Borrower, Mezzanine B Borrower, Mezzanine C Borrower, Guarantor, Sponsor, SPE Component Entity (as defined herein and in the Mortgage Loan Agreement) and Manager, and updated budgets relating to the Property, which (in each case) are available or reasonably obtainable using systems of Borrower and Manager that are currently in place (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and acceptable to the Rating Agencies, (B) 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 Properties and (C) use commercially reasonable efforts to obtain revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies;
(ii) provide new and/or updated opinions of counsel, which may be relied upon by (a) amending this Agreement Lender and the other Rating Agencies, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies with respect to Borrower, Mortgage Borrower, any Mezzanine Borrower and SPE Component Entities (as defined herein and in the Mortgage Loan Agreement) and due execution and enforceability of the Loan Documents, customary in Secondary Market Transactions or required by the Rating Agencies, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and satisfactory in form and substance to the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may require, in each case consistent with the facts covered by such representations and warranties as they exist on the date thereof;
(iv) execute such amendments to the Loan Documents, the Mezzanine Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Mortgage Loan Documents and Borrower’s, Mezzanine Borrower’s, Mortgage Borrower’s and any Operating Lessee Pledgor’s or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies in order to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) further bifurcating the Loan into two or rating agencies more additional components, re-allocating the Loan among existing components or existing Notes, reducing the number of components of the Loan or of any Note and/or creating additional separate notes and/or creating additional senior/subordinate note structure(s), including, without limitation, re-allocating the principal amounts of the Loan, the Note and any Mezzanine Loan, including, without limitation, re-allocating the portions of each of the Loan and/or any Mezzanine Loan that accrue at a fixed rate of interest and that accrue at a floating rate of interest and/or re-allocating the portion of the Loan and any Mezzanine Loan which is subject to open prepayment in accordance with the terms and conditions of the Loan Documents (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that (I) Borrower and/or Guarantor shall not be required to so modify or amend any Loan Document, Mortgage Loan Document or Mezzanine Loan Document if such modification or amendment would change any economic or non-economic term, including the interest rate or the stated maturity (except as would not have an adverse effect on Borrower, Guarantor and/or any of their Affiliates other than to a de minimus extent) or otherwise increase the obligations (other than to a de minimus extent) or decrease the rights of Borrower or any Affiliates pursuant to the Loan Documents, Mortgage Loan Documents or Mezzanine Loan Documents (other than to a de minimus extent), except in connection with a Loan Bifurcation which may result in varying interest rates but will have the same weighted average coupon of the original Note (except following an Event of Default) and (II) none of Borrower, Mortgage Borrower, any Mezzanine Borrower, any Operating Lessee Pledgor nor any SPE Component Entity shall be required to modify its organizational structure or make any other modification, if such modification would cause it or any of its Affiliates or direct or indirect owners to incur any additional tax liability or suffer other adverse consequences (other than to a de minimus extent). Borrower acknowledges and agrees that the execution of any Loan Bifurcation in accordance with terms and conditions hereof shall not in itself increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents; and
(v) prior to the Securitization of the entire Loan, reallocate the Allocated Loan Amounts in Lender’s reasonable discretion and reasonably approved by Borrower, such reasonable approval not to be unreasonably withheld, conditioned or delayed. Notwithstanding anything herein to the contrary, with respect to any compliance by any Borrower Party with requests made pursuant to this Section 11.1 or any of Sections 11.2, 11.8 and 11.9 with respect to any Secondary Market Transaction, each Borrower Party shall pay their own costs and expenses incurred prior to the consummation of the corresponding Secondary Market Transaction in connection therewith (including, without limitation, attorneys’ fees and expenses) and Lender shall pay its own costs and expenses in connection therewith (including, without limitation, attorneys’ fees and expenses); provided that Lender shall reimburse the Borrower Parties for any reasonable, out-of-pocket costs incurred by the Borrower Parties prior to the consummation of the corresponding Secondary Market Transaction in Borrower’s complying with such requests (exclusive of the Borrower Parties’ legal fees, costs and disbursements, which shall be paid by the Borrower Parties and exclusive of all of Borrower’s costs and expenses with respect to Section 11.1(b)(v) hereof, which shall be paid by the Borrower Parties).
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably expects that Borrower 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 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 equal or exceed ten percent (10%), but be 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 as required under 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.
(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, and if Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and the 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) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of Securities under Regulation AB or applicable Legal Requirements.
(e) Any financial data or financial statements required pursuant to Section 11.1(d) above shall be furnished to Lender (1) not later than forty-one (41) days after the end of the fiscal quarter of Borrower and (2) not later than eighty-five (85) days after the end of each fiscal year of Borrower.
(f) If requested by Lender, Borrower shall provide Lender, promptly 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 five (5) Business Days following notice from Lender), with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization.
(g) All financial data and statements provided by Borrower hereunder in connection with a Securitization shall meet (and shall be accompanied by such auditors’ reports or consents and such certificates as may be necessary to comply with) the requirements of Regulation AB and other Legal Requirements, in each case to the extent applicable and as specified by Lender.
(h) Provided that no Event of Default has occurred and is continuing, Lender agrees that it shall not sell any portion of the Loan or participation interest therein (excluding any note, certificate or other instrument issued in a Securitization) to an Excluded Entity in connection with the rating initial sale thereof. For the avoidance of the Loans doubt, Borrower’s rights under this Section do not apply to any sale of Securities or the Securitizationsimilar certificated instruments, and (c) providing apply solely to the initial sale of a certificate note, participation or mezzanine interest and not any subsequent resale thereof. Lender shall be entitled to rely on a representation from a transferee that such transferee is not an Excluded Entity without any need for independent investigation.
(i) agreeing Notwithstanding anything to indemnify the Lender Partiescontrary contained herein, the provisions regarding the delivery of REMIC Opinions and satisfaction of REMIC Requirements will only apply if all or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light portion of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization LiabilitiesLoan has been securitized.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.), Mezzanine Loan Agreement (Northstar Realty Finance Corp.)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization. The transactions referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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”. At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) through If requested by Lender in connection with any Secondary Market Transaction, Borrower shall assist Lender (at Lender’s sole cost and expense, other than any de minimis costs of Borrower, which shall be paid by Borrower):
(i) provide (A) updated financial and other information with respect to the pledge Property, the business operated at the Property, any SPE Party, Guarantor, Sponsor, any SPE Component Entity and Manager, as set forth herein, (B) updated budgets relating to the Property, (C) 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 Loans Property (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies and (D) revisions to and other agreements with respect to the Property Documents in form and substance acceptable to Lender and the Rating Agencies;
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Lender, the NRSROs and their respective counsel, agents and representatives, as collateral security for loans may be customary in Secondary Market Transactions or required by the Rating Agencies, which counsel and opinions shall be satisfactory in form and substance to a Lender Party or and the assignment or issuance Rating Agencies;
(iii) provide updated (as of direct or indirect interests the closing date of the applicable Secondary Market Transaction) representations and warranties made in the Loans Loan Documents and such additional representations and warranties as the Rating Agencies may require;
(iv) execute such as, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with amendments to the Lender Parties to effect the Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, the Property Documents and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) any such amendment SPE Party’s or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies to effect any Secondary Market Transaction, including, without limitation, (A) amend and/or supplement the independent director provisions provided on Exhibit C attached hereto, in each case, (B) bifurcating the Loan into two or rating agencies more components and/or additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would change the interest rate, the stated maturity (except as provided in subclause (C) above) or the amortization of principal set forth herein, except in connection with a Loan Bifurcation which may result in varying interest rates and, as applicable, amortization schedules, but which shall have the rating same initial weighted average coupon of the Loans or the Securitization, and original Note; and
(cv) providing a certificate (i) agreeing to indemnify the Lender Parties, review any Disclosure Document or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) interim draft thereof furnished by Lender to which the Borrower with respect to information contained therein that was furnished to Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan SPE Party to the Lender Partiers specifically in connection with the preparation of such Disclosure Document and provide to Lender any Loan revisions to such Disclosure Document or arise out interim draft thereof necessary to insure that such reviewed information does not contain any untrue statement of or are based upon the omission or alleged omission to state therein a material fact required or omit to state any material fact necessary to make statements contained therein not misleading.
(c) Upon request, Borrower shall furnish to Lender from time to time such financial data and financial statements as Lender determines to be stated thereinnecessary, advisable or necessary appropriate for complying with any applicable legal requirements (including those applicable to Lender or any Servicer (including, without limitation and to the extent applicable, Regulation AB)) within the timeframes necessary, advisable or appropriate in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and comply with such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilitiesrequirements.
Appears in 2 contracts
Samples: Loan Agreement (Medalist Diversified REIT, Inc.), Loan Agreement (Medalist Diversified REIT, Inc.)
Securitization. In addition to Borrower acknowledges and agrees that Lender shall have the absolute and unconditional right at any time after the date hereof and at any time during the term of the Loan without requiring any consent or approval from Borrower, any Loan Party or any other assignment permitted pursuant person guaranteeing the payment of the Debt or any other Person associated with or connected with the Loan or the Collateral to this Sectionsell, assign, pledge, hypothecate or otherwise transfer Lender’s interest in the Loan Parties hereby acknowledge that (x) in whole or in part, or to place one or more participation interests therein in one or more separate transactions, or to effect a syndication or securitization of the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell Loan in one or securitize the Loans more transactions (a “Securitization”) through the pledge of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and in each case to or with such Persons (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, domestic or foreign banks, insurance companies, pension funds, trusts, other institutional lenders or investors, natural persons, grantor trusts, owner trusts, special purpose corporations, REMICs, FASITs, real estate investment trusts or other similar or comparable investment vehicles) (collectively or individually, “Investor”) and on such terms and conditions as Lender shall deem to be appropriate in the exercise of its sole and absolute discretion. In connection with any such sale, assignment, participation, syndication or securitization, Lender shall have the absolute and unconditional right without obtaining the prior consent or approval of any Loan Party or any other Person guaranteeing the payment of the Debt or any other Person associated or connected with the Loan or the Collateral (including the Property Owners) to disclose, deliver and to share with any prospective purchaser of the Loan or of any securities or of any participation or other interest therein (including any such interest to be acquired in connection with a syndication or securitization of the Loan), or with any prospective Rating Agency, or their respective counsel or representatives, such information (financial or otherwise), documents and instruments pertaining to the Loan or any other person, party or entity associated or connected with the Loan or the Collateral (collectively, the “Disclosure Material and Information”) as Lender shall deem to be appropriate in the exercise of its sole and absolute discretion. Borrower shall cooperate, and shall cause each Loan Party and each other Person, associated or connected with the Loan or the Collateral to cooperate, in all reasonable respects with Lender in connection with any sale, assignment, participation, syndication or securitization of the Loan or any interest therein by Lender pursuant to the provisions of this paragraph but at no out-of-pocket cost to Borrower. Without in any manner implying the necessity therefor, Borrower grants to Lender, and shall cause each Loan Party and each other Person associated or connected with the Loan or the Collateral to specifically grant to Lender, the right to distribute any and all of the Disclosure Material and Information in connection with any sale, assignment, participation, syndication or securitization of the Loan or of any interest therein by Lender pursuant to the provisions of this paragraph. Borrower shall execute and deliver, and shall cause each Loan Party and each other Person associated or connected with the Loan or the Collateral to execute and deliver, such documents and instruments as may be reasonably necessary to (a) amending this Agreement split the Loan into two or more loans evidenced by and pursuant to separate sets of notes and other related loan documents, or (b) to modify the other terms and provisions of the Loan Documents, and executing such additional documentsin each case to the full extent required by Lender to facilitate any sale, as reasonably requested assignment, pledging, hypothecation, participation, syndication or securitization of the Loan or any interest therein by Lender pursuant to the Lenders in connection with the Securitization; provided provisions of this paragraph, it being agreed that (i) any such amendment splitting or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does modification of the Loan will not materially adversely affect or diminish the rights, rights of any Loan Party as presently set forth in the Loan Documents and will not increase the monetary obligations and liabilities or materially increase the obligations, non-monetary obligations of Borrower Loan Party under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the LoansDocuments, and (ii) agreeing if the Loan is split, the retained interest of Lender, if any, in the Loan shall be allocated to reimburse or among one or more of such separate loans in a manner specified by Lender in its sole and absolute discretion. If Borrower shall default in the performance of its obligation as set forth in this paragraph, and if such default shall not be remedied by Borrower within fifteen (15) days after notice by Lender, Lender Parties shall have the absolute and unconditional right in its sole and absolute discretion to declare such default an Event of Default under this Agreement. Lender shall endeavor to provide notice to Borrower of any such assignment, sale, participation, syndication or securitization of the other Securitization Parties for Loan in a reasonably timely manner, but any legal failure by Lender to provide notice to Borrower shall not give rise to any claim or other expenses reasonably incurred defense on the part of any of the Loan Parties, or limit the rights of Lender under this Section 15.19 or the Loan Documents. Until otherwise directed in writing by Lender following the occurrence of any such Persons in connection with defending the Securitization Liabilitiesassignment, sale, participation, syndication or securitization, Borrower shall continue to deliver all payments and deposits as required prior to such occurrence.
Appears in 2 contracts
Samples: Loan Agreement (Prime Group Realty Trust), Loan Agreement (Prime Group Realty Trust)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization. The transactions referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge of the Loans as collateral security for loans market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans (such asmarketplace or by the Rating Agencies in connection with any Secondary Market Transactions, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, to:
(i) provide (A) updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, Sponsor, SPE Component Entity and Manager (provided, that, such financial information with respect to Sponsor and Guarantor shall, unless otherwise agreed to by (a) amending this Agreement and Borrower, be in the other Loan Documents, and executing such additional documents, same format as reasonably requested by the Lenders delivered to Lender in connection with the Securitization; provided that closing of the Loan), (iB) any such amendment updated budgets relating to the Property, and (C) 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 “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or additional documentation does not impose material additional costs on Borrower opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Property Documents, Borrower and Borrower’s Affiliates, which counsel and opinions shall be satisfactory in form and substance to Lender and the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may reasonably require; and
(iv) execute such amendments to the Loan Documents, the Property Documents and Borrower’s or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect any Secondary Market Transaction, including, without limitation, (A) amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan into two or more components and/or additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would (1) change the interest rate, the stated maturity or additional documentation does not materially adversely affect the rightsamortization of principal set forth herein, (2) change the aggregate outstanding principal balance of the Loan, (3) alter the restrictions on transfers of equity interests in Borrower or materially increase transfers of the obligationsProperty, in each case, as set forth herein, (4) alter any limitations of Borrower’s recourse obligations under the Loan as contained herein or (5) alter any other material obligation, right or privilege of Borrower under the Loan Documents (other than to a de minimis extent or change or affect except, in a manner adverse to Borrower the financial terms case of the Loanseach of (1) through (5) above, (by) providing such information as may be reasonably requested by the Lenders or rating agencies provided in subsection (C) above and (z) in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the rating same initial weighted average coupon of the Loans or the Securitization, and original Note).
(c) providing a certificate Upon request, Borrower shall furnish to Lender from time to time such financial data and financial statements as Lender determines to be necessary, advisable or appropriate for complying with any applicable legal requirements (i) agreeing including those applicable to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the SecuritizationServicer (including, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party without limitation and to the Lender Partiers in connection with any Loan Document extent applicable, Regulation AB)) within the timeframes necessary, advisable or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary appropriate in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and comply with such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilitiesrequirements.
Appears in 2 contracts
Samples: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)
Securitization. In addition to any other assignment permitted pursuant to this Section, Loan Article XII Credit Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“any Lender Parties”) Party may sell or securitize the Loans (a “Securitization”) through the pledge of the Loans as collateral security for loans to a any other Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agencyRating Agency. Any Securitization shall be at the relevant Lender Parties’ sole cost and expense. The Loan Credit Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower the Borrowers and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower any of the Borrowers under the Loan Documents or change or affect in a manner adverse to Borrower the Borrowers the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies Rating Agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Credit Party to the Lender Partiers Parties in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleadingmisleading (the “Securitization Liabilities”), and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization LiabilitiesLiabilities (but not for expenses incurred in connection with the Securitization), except to the extent a Securitization Liabilities result solely from such Securitization Party’s gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction).
Appears in 2 contracts
Samples: Loan Agreement (Hemisphere Media Group, Inc.), Loan Agreement (Hemisphere Media Group, Inc.)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan or (iii) to securitize the Loans Loan or any portion thereof in a single asset securitization or a pooled loan securitization. The transaction referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge of the Loans as collateral security for loans market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, at Borrower’s cost and expense, including, without limitation, to:
(such asi) (A) provide updated financial and other information with respect to the Property, for instancethe business operated at the Property, collateralized loan obligations)Borrower, Guarantor and Manager, and (yB) such Securitization provide updated budgets relating to the Property (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be rated relied upon by a rating agency. The Lender, the Rating Agencies and their respective counsel, agents and representatives, as to non-consolidation, matters of Delaware (or Maryland, as applicable) (including authority-to-file insolvency) and federal bankruptcy law relating to limited liability companies or any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property and Borrower and Borrower’s Affiliates, which counsel and opinions shall be satisfactory in form and substance to Lender and the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Parties shall Documents and such additional representations and warranties as the Rating Agencies may require; and
(iv) execute such amendments to the Loan Documents and Borrower or any SPE Component Entity’s organizational documents as may be reasonably cooperate with requested by Lender or requested by the Lender Parties Rating Agencies or otherwise to effect the Securitization including, without limitation, by bifurcation of the Loan into two or more components and/or separate notes and/or creating a senior/subordinate note structure (aany of the foregoing, a “Loan Bifurcation”); provided, however, that Borrower shall not be required to modify or amend any Loan Document or organizational document if such modification or amendment would (A) amending this Agreement change the interest rate, the stated maturity or the amortization of principal set forth in the Note, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the same initial weighted average coupon of the original Note or any other material economic or non-economic term of the Loan; (B) modify or amend any other material economic or material non-economic term of the Loan or the Loan Documents; or (C) materially increase Borrower’s obligations and liabilities under the Loan Documents.
(c) If, at the time one or more Disclosure Documents are being prepared for a Securitization, Lender expects that Borrower alone or Borrower and executing 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 additional documentsSecuritization, Borrower shall furnish (or cause to be furnished) to Lender upon request (i) the selected financial data or, if applicable, net operating income, described in 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 and 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 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 reasonably requested by applicable, in such Securitization or (ii) the Lenders 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 at any time during which the Loan (or apportion 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; provided that , (iB) any such amendment or additional documentation does not impose material additional costs on later than thirty (30) days after the end of each fiscal quarter of Borrower and (iiC) 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 an Exchange Act Filing is not required. 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 any of the Properties if, in connection with a Securitization, Lender expects there to be, with respect to such amendment 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.
(d) All financial data and financial statements provided by Borrower hereunder pursuant to Section 11.1(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 11.1(c) above shall be audited by independent accountants of Borrower (which accountants shall be 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 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 11.1(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 11.1(d).
(e) If requested by Lender, Borrower shall provide Lender, promptly upon request, with any other or additional documentation does not materially adversely affect the rightsfinancial statements, or materially increase the obligationsfinancial, of Borrower under the Loan Documents statistical or change operating information, as Lender shall determine to be required pursuant to Regulation AB or affect any amendment, modification or replacement thereto or other legal requirements in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information connection with any Disclosure Document or any Exchange Act Filing or as may shall otherwise be reasonably requested by Lender.
(f) In the Lenders or rating agencies event Lender determines, in connection with the rating of the Loans or the a Securitization, that the financial data and financial statements and (cif applicable) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact related accountants’ reports and consents required to be stated therein, or necessary in order to make comply with Regulation AB or any amendment, modification or replacement of Regulation AB or with other legal requirements are other than as provided herein, then notwithstanding the statements thereinprovisions of Section 11.1(c) and (d), in light of the circumstances under which they were made, not misleadingLender may request, and Borrower shall promptly provide, such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, other financial statements and (iiif applicable) agreeing related accountants’ reports and consents as Lender determines to reimburse the Lender Parties and the other Securitization Parties be necessary or appropriate for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilitiescompliance.
Appears in 2 contracts
Samples: Loan Agreement, Loan Agreement (Consolidated Tomoka Land Co)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization. The transactions referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge of the Loans as collateral security for loans market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans (such asmarketplace by prospective investors, for instancetransferees, collateralized loan obligations)lenders and/or participants or by the Rating Agencies in connection with any Secondary Market Transactions, and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Guarantor, Sponsor, SPE Component Entity and Manager, and updated budgets relating to the Property, which (in each case) are available or reasonably obtainable using systems of Borrower and Manager that are currently in place (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and acceptable to the Rating Agencies, (B) 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 Properties and (C) use commercially reasonable efforts to obtain revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies;
(ii) provide new and/or updated opinions of counsel, which may be relied upon by (a) amending this Agreement Lender and the other Rating Agencies, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies with respect to Borrower and SPE Component Entities and due execution and enforceability of the Loan Documents, customary in Secondary Market Transactions or required by the Rating Agencies, which counsel and executing such additional documentsopinions shall be reasonably satisfactory in form and substance to Lender and satisfactory in form and substance to the Rating Agencies;
(iii) provide updated, as reasonably requested by of the Lenders closing date of the Secondary Market Transaction, representations and warranties made in connection with the Securitization; provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents and such additional representations and warranties as the Rating Agencies may require, in each case consistent with the facts covered by such representations and warranties as they exist on the date thereof;
(iv) execute such amendments to the Loan Documents, the Mezzanine Loan Documents and Borrower’s, Mezzanine Borrower’s, any Operating Lessee Pledgor’s or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies in order to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) further bifurcating the Loan into two or rating agencies more additional components, re-allocating the Loan among existing components or existing Notes, reducing the number of components of the Loan or of any Note and/or creating additional separate notes and/or creating additional senior/subordinate note structure(s), including, without limitation, re-allocating the principal amounts of the Loan, the Note and any Mezzanine Loan, including, without limitation, re-allocating the portions of each of the Loan and/or any Mezzanine Loan that accrue at a fixed rate of interest and that accrue at a floating rate of interest and/or re-allocating the portion of the Loan and any Mezzanine Loan which is subject to open prepayment in accordance with the terms and conditions of the Loan Documents (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that (I) Borrower and/or Guarantor shall not be required to so modify or amend any Loan Document if such modification or amendment would change any economic or non-economic term, including the interest rate or the stated maturity (except as would not have an adverse effect on Borrower, Guarantor and/or any of their Affiliates other than to a de minimus extent) or otherwise increase the obligations (other than to a de minimus extent) or decrease the rights of Borrower pursuant to the Loan Documents (other than to a de minimus extent), except in connection with a Loan Bifurcation which may result in varying interest rates but will have the same weighted average coupon of the original Note (except following an Event of Default or any principal payments received on the Loan) and (II) none of Borrower, Mezzanine Borrower, any Operating Lessee Pledgor nor any SPE Component Entity shall be required to modify its organizational structure or make any other modification, if such modification would cause it or any of its Affiliates or direct or indirect owners to incur any additional tax liability or suffer other adverse consequences (other than to a de minimus extent). Borrower acknowledges and agrees that the execution of any Loan Bifurcation in accordance with terms and conditions hereof shall not in itself increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents; and
(v) prior to the Securitization of the entire Loan, reallocate the Allocated Loan Amounts of the Properties in Lender’s reasonable discretion (and reasonably approved by Borrower, such reasonable approval not to be unreasonably withheld, conditioned or delayed). Notwithstanding anything herein to the contrary, with respect to any compliance by any Borrower Party with requests made pursuant to this Section 11.1 or any of Sections 11.2, 11.8 and 11.9 with respect to any Secondary Market Transaction, each Borrower Party shall pay their own costs and expenses incurred prior to the consummation of the corresponding Secondary Market Transaction in connection therewith (including, without limitation, attorneys’ fees and expenses) and Lender shall pay its own costs and expenses in connection therewith (including, without limitation, attorneys’ fees and expenses); provided that Lender shall reimburse the Borrower Parties for any reasonable, out-of-pocket costs incurred by the Borrower Parties prior to the consummation of the corresponding Secondary Market Transaction in Borrower’s complying with such requests (exclusive of the Borrower Parties’ legal fees, costs and disbursements, which shall be paid by the Borrower Parties and exclusive of all of Borrower’s costs and expenses with respect to Section 11.1(b)(v) hereof, which shall be paid by the Borrower Parties).
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably expects that Borrower 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 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 equal or exceed ten percent (10%), but be 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 as required under 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.
(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, and if Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and the 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) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of Securities under Regulation AB or applicable Legal Requirements.
(e) Any financial data or financial statements required pursuant to Section 11.1(d) above shall be furnished to Lender (1) not later than forty-one (41) days after the end of the fiscal quarter of Borrower and (2) not later than eighty-five (85) days after the end of each fiscal year of Borrower.
(f) If requested by Lender, Borrower shall provide Lender, promptly 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 five (5) Business Days following notice from Lender), with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization.
(g) All financial data and statements provided by Borrower hereunder in connection with a Securitization shall meet (and shall be accompanied by such auditors’ reports or consents and such certificates as may be necessary to comply with) the requirements of Regulation AB and other Legal Requirements, in each case to the extent applicable and as specified by Lender.
(h) Provided that no Event of Default has occurred and is continuing, Lender agrees that it shall not sell any portion of the Loan or participation interest therein (excluding any note, certificate or other instrument issued in a Securitization) to an Excluded Entity in connection with the rating initial sale thereof. For the avoidance of the Loans doubt, Borrower’s rights under this Section do not apply to any sale of Securities or the Securitizationsimilar certificated instruments, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party apply solely to the initial sale of a note, participation or mezzanine interest and not any subsequent resale thereof. Lender Partiers in connection with shall be entitled to rely on a representation from a transferee that such transferee is not an Excluded Entity without any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties need for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilitiesindependent investigation.
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Samples: Loan Agreement (Northstar Realty Finance Corp.), Loan Agreement (NorthStar Healthcare Income, Inc.)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan or (iii) to securitize the Loans Loan or any portion thereof in a single asset securitization or a pooled loan securitization. The transaction referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrowers shall assist Lender in satisfying the pledge market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, (at no cost to Borrowers (and Lender shall reimburse Borrowers for any actual out-of-pocket expense incurred by Borrowers at the request of Lender (including Borrowers reasonable legal fees incurred in connection with such Lender request)) including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrowers, Guarantor and Manager in form and substance similar to that information provided to Lender in advance of closing, (B) provide updated budgets relating to the 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 Loans Properties (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of 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, the Rating agencies and their respective counsel, agents and representatives, as collateral security for loans to a non-consolidation, matters of Delaware (or Maryland, as applicable) and federal bankruptcy law relating to limited liability companies or any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Properties and Borrowers and Borrowers’ Affiliates, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender Party or and the assignment or issuance Rating Agencies;
(iii) provide updated, as of direct or indirect interests the closing date of the Secondary Market Transaction, representations and warranties made in the Loans Loan Documents; provided, however, such updated representations and warranties shall only be required to be made to the extent such statements are true and accurate and, unless any updated exception to any representation and/or warranty would otherwise be an Event of Default hereunder, the taking of any additional exception to the representations and warranties shall not, on its own, be an Event of Default; and
(iv) execute such as, for instance, collateralized loan obligations), amendments to the Loan Documents and (y) such Securitization any Borrower or any SPE Component Entity’s organizational documents as may be rated reasonably requested by a rating agency. The Loan Parties shall reasonably cooperate with Lender or requested by the Lender Parties Rating Agencies or otherwise to effect the Securitization including, without limitation, by bifurcation of the Loan into two or more components and/or separate notes and/or creating a senior/subordinate note structure (a) amending this Agreement and any of the foregoing, a “Loan Bifurcation”); provided, however, that Borrowers shall not be required to modify or amend any Loan Document if such modification or amendment would change the interest rate, the stated maturity or the amortization of principal set forth in the Note, or in any other Loan Documentsway increase the obligations or decrease the rights of Borrower, and executing such additional documents, as reasonably requested by the Lenders except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the Securitization; provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms same initial weighted average coupon of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilitiesoriginal Note.
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Securitization. In addition to Borrower hereby acknowledges that Lender, any other assignment permitted pursuant to this Sectionof its Affiliates, Loan Parties hereby acknowledge that (x) the Lendersits successors or assigns, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) Loan through the pledge issuance of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such asCertificates, for instance, collateralized loan obligations), and (y) such Securitization may which will be rated by a rating agencythe Rating Agencies. The Loan Parties shall reasonably Borrower agrees that it will cooperate fully with Lender and the Rating Agencies in connection with the Lender Parties to effect the Securitization Securitization, including, without limitationbut not limited to, by (a) amending this Agreement and entering into nonmaterial amendments to the other Loan Documents, and executing such additional documents, as reasonably requested Basic Documents to the extent required by the Lenders Rating Agencies or otherwise in connection with the Securitization; provided that (ib) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect assisting in the rights, or materially increase the obligations, preparation of Borrower under offering documents describing the Loan Documents or change or affect and the Securitization in a manner adverse to Borrower that satisfies the financial terms requirements of the Loansapplicable federal and state securities laws, by (bwithout limitation) (i) providing such information as may be requested in connection therewith and (ii) acting reasonably and promptly in connection with its review and approval of the relevant portions of the offering documents; (c) causing to be rendered such customary opinion letters (including, without limitation, with respect to substantive nonconsolidation) as shall be requested by the Rating Agencies, and an opinion letter from each real estate counsel to Borrower stating that the assignment of the Loan and the Basic Documents to Trustee is enforceable; (d) representing that as of the Securitization Closing Date (i) the Tax Fair Market Value of each Collateral Property is equal to or greater than the Allocated Loan Amount for such Collateral Property and (ii) the aggregate Tax Fair Market Value of the Collateral Properties is equal to or exceeds the Principal Indebtedness, and providing Lender with any supporting materials reasonably requested by Lender; (e) re-making the Lenders representations and warranties contained in the Basic Documents as of the Securitization Closing Date; and (f) obtaining a comfort letter from a nationally recognized accounting firm in connection with financial information relating to Borrower or rating agencies the Collateral Properties which is presented in the offering documents. Borrower agrees that Lender shall have the right in its sole discretion in connection with the rating Securitization to replace the Administrative Agent with the Servicer (or any entity which acts as a sub-servicer) under the Pooling and Servicing Agreement. Borrower agrees to pay its pro rata share of the Loans or third party fees and expenses in connection with the Securitization, including, but not limited to, legal fees and (c) disbursements, accounting fees, third-party due diligence expenses, Rating Agency fees and expenses, the costs of providing a certificate (i) agreeing appraisals, environmental reports and engineering reports as required by the Rating Agencies, Lender's out-of-pocket costs and any servicing, Trustee or special servicing fees and expenses. On the Closing Date, Borrower shall pay to indemnify Lender the sum of $100,000, which shall be held by Lender Partiesand applied to the first $100,000 of Borrower's pro rata share of the costs described above; and if the aggregate amount of the costs are less than $100,000, or then any party providing credit support or otherwise participating in excess shall be returned to Borrower. In connection with the Securitization, including any investors Lender intends to use the engineering and environmental reports provided for in a securitization entity (collectivelySection 6.01, updated as necessary due to the “Securitization Parties”) age of such reports, to the extent permitted by the Rating Agencies. Lender shall provide Borrower with an itemized xxxx of the expenses for any losses, claims, damages which it seeks reimbursement from Borrower. On or liabilities (the “Securitization Liabilities”) prior to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out Closing Date, Borrower shall execute and deliver to Lender an instrument (in form and substance reasonably satisfactory to Lender and Borrower) indemnifying and holding Lender and its controlling Persons and Affiliates harmless against all costs, expenses and damages incurred by Lender and its controlling Persons and Affiliates (including, without limitation, all liabilities under all applicable federal and state securities laws) as a direct result of or are based upon any untrue statement or alleged untrue statement of any a material fact contained in any Loan Document or in any writing delivered by such offering documents based on information provided by, or on behalf of, Borrower which describes Borrower, the General Partner, the Lessee, the REIT, the Collateral Properties (and the management thereof) or any aspect of this Loan, or as a result of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out untrue statement of or are based upon the omission or alleged omission to state therein a material fact required in any of the financial statements of Borrower, the General Partner, the Lessee or the REIT incorporated into the offering documents or the failure to be stated thereininclude in such financial statements or in such offering documents any material fact relating to Borrower, or the General Partner, the Lessee, the REIT, the Collateral Properties (and the management thereof) and any aspect of the Loan necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that Borrower shall have had an opportunity to review and such indemnity shall survive any transfer by have approved the Lenders or their successors or assigns relevant portions of the Loansoffering documents. Borrower shall not indemnify Lender for any liability, and loss, cost or expense incurred as a result of the inclusion of any erroneous or misleading information in the offering documents, or the omission of material information from the offering documents, pertaining to Borrower, the General Partner, the Lessee, the REIT, the Collateral Properties (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties management thereof) or any aspect of this Loan, if Borrower or its counsel shall have previously indicated in writing to Lender or its counsel the erroneous or misleading nature of such information or the omission of material information, as the case may be. Borrower shall not indemnify Lender for any legal liability, loss, cost or other expenses reasonably expense incurred by such Persons as a result of the inclusion of any erroneous or misleading information in connection with defending the Securitization Liabilitiesoffering documents, or the omission of material information from the offering documents, unrelated to Borrower, the General Partner, the REIT, the Lessee, the Collateral Properties (and the management thereof) or any aspect of the Loan.
Appears in 1 contract
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in one or more single asset securitizations or one or more pooled asset securitizations. The transactions referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower and Guarantor shall assist Lender in satisfying the pledge of the Loans as collateral security for loans market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans (such asmarketplace or by the Rating Agencies in connection with any Secondary Market Transactions, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by to:
(ai) amending this Agreement provide (A) updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Guarantor, SPE Component Entity and Manager, (B) updated budgets relating to Borrower’s operations at the Properties, (C) 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 “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and the Rating Agencies and (D) revisions to and other agreements with respect to the Property Documents in form and substance acceptable to Lender and the Rating Agencies, provided, that, Borrower shall not be in violation of this provision to the extent such information relates to information regarding the Tenants under the Leased Fee Leases and such Tenants are not obligated to deliver such information under their Leased Fee Leases;
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Properties, Property Documents, Borrower and Borrower’s Affiliates, which counsel and opinions shall be satisfactory in form and substance to Lender and the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents; and
(iv) execute such amendments to the Loan Documents, the Property Documents and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) Borrower’s or any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies or rating agencies otherwise to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) further bifurcating the Loan into two or more additional components, re-allocating the Loan among existing components, reducing the number of components of the Loan and/or creating additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that Borrower and/or Guarantor shall not be required to so modify or amend any Loan Document if such modification or amendment would change any material economic or material non-economic term, including the interest rate or the stated maturity (except as provided in subclause (C) above), except in connection with a Loan Bifurcation which may result in varying interest rates but will have the same initial weighted average coupon of the original Note (except that the weighted average coupon of the original Note may vary (i) as a result of the application of proceeds following a casualty or condemnation, (ii) as a result of prepayments of the Loan during the continuance of an Event of Default, or (iii) or any principal prepayments received on the Loan).
(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 collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, each of Borrower and Guarantor 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 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 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 rating preparation of the Loans or Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (cC) providing 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 certificate filing pursuant to the Exchange Act in connection with or relating to the Securitization (ian “Exchange Act Filing”) agreeing is not required. If requested by Lender, Borrower shall furnish to indemnify Lender financial data and/or financial statements for any tenant of the Property if, in connection with a Securitization, Lender Partiesexpects 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.
(d) All financial data and statements provided by Borrower and Guarantor hereunder 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 this Section 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 statements (audited or unaudited) provided by Borrower under this Section shall be accompanied by an Officer’s Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (d).
(e) If requested by Lender, each of Borrower and Guarantor shall provide Lender, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall determine to be required pursuant to Regulation AB or any party providing credit support amendment, modification or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages replacement thereto or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers other legal requirements in connection with any Loan Disclosure Document or arise out of any Exchange Act Filing or are based upon as shall otherwise be reasonably requested by Lender.
(f) In the omission or alleged omission to state therein event Lender determines, in connection with a material fact Securitization, that the financial data and financial statements required to be stated therein, or necessary in order to make comply with Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the statements thereinprovisions of this Section, in light of the circumstances under which they were made, not misleadingLender may request, and Borrower shall promptly provide, such indemnity shall survive any transfer by the Lenders other financial data and financial statements as Lender determines to be necessary or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties appropriate for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilitiescompliance.
Appears in 1 contract
Securitization. In addition (a) Borrower acknowledges and agrees that Lender may, at each party’s expense to any other assignment permitted pursuant to this Sectionthe extent provided for in accordance with Section 9.1.1(b), Loan Parties hereby acknowledge that consummate one or more private or public securitizations of rated single- or multi-class securities (x) the Lenders, their Affiliates and Approved Funds (“Lender PartiesSecurities”) may sell secured by or securitize evidencing ownership interests in all or any portion of the Loans Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (such sales, participations and/or securitizations, collectively, a “Securitization”). Bxxxxxxx acknowledges and agrees that Disqualified Persons may be holders or purchasers of Securities in connection with a Securitization.
(b) through At the pledge request of Lender, and to the Loans as collateral security for loans extent not already required to a Lender Party be provided by or the assignment or issuance on behalf of direct or indirect interests Borrower under this Agreement, Borrower shall provide information not in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization possession of Lender or which may be rated reasonably required by a rating agencyLender or take other actions reasonably required by Lxxxxx, in each case in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization, provided such information is in its possession and can be produced without undue burden or cost. The Loan Parties Lender shall reasonably cooperate with have the Lender Parties right to effect provide to prospective investors and the Securitization Rating Agencies any information in its possession, including, without limitation, by (a) amending this Agreement financial statements relating to Borrower, Guarantor, if any, the Properties and any Tenant of the Improvements. Borrower acknowledges that certain information regarding the Loan and the parties thereto and the Properties may be included in a private placement memorandum, prospectus or other Loan Documentsdisclosure documents. Borrower shall, at Lxxxxx’s request, at Lxxxxx’s sole cost and executing expense (other than with respect to Borrower’s attorneys’ fees and expenses), cooperate with Lxxxxx’s efforts to arrange for a Securitization in accordance with the market standards to which Lender customarily adheres and/or which may be required by prospective investors and/or the Rating Agencies in connection with any such additional documentsSecuritization. Bxxxxxxx agrees to review, as reasonably requested by the Lenders at Lxxxxx’s request in connection with the Securitization; provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect , the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms highlighted sections of the Loans, (b) providing such information as may be reasonably requested by Disclosure Documents to the Lenders or rating agencies in connection with the rating extent of the Loans or information that was provided by Bxxxxxxx and relates to Borrower, Guarantor, and/or the Securitization, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities Properties (the “Securitization LiabilitiesCovered Disclosure Information”) and shall confirm that the factual statements and representations contained in such highlighted sections (to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out extent of or are based upon any Provided Information therein) do not contain any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required or omit to be stated therein, or state a material fact necessary in order to make the statements thereinmade, in the light of the circumstances under which they were made, not misleading.
(c) Borrower agrees to make upon Lxxxxx’s written request, without limitation, all structural or other changes to the Loan (including delivery of 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 indemnity new notes or modified note may have different interest rates and amortization schedules), modifications to any documents evidencing or securing the Loan, creation of one or more mezzanine loans (including amending Borrower’s organizational structure to provide for one or more mezzanine borrowers), delivery of opinions of counsel acceptable to the Rating Agencies or potential investors and addressing such matters as the Rating Agencies or potential investors may require; provided, however, that in creating such new notes or modified notes or mezzanine notes Borrower shall survive any transfer by not be required to modify (i) the Lenders or their successors or assigns weighted average interest rate payable under the Note (except that the weighted average interest rate may subsequently change due to (1) the application of the Loansfunds following an Event of Default, and (ii2) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons application of Net Proceeds in connection with defending a mandatory prepayment as a result of a Condemnation or Casualty), (ii) the stated maturity of the Note, (iii) the aggregate amortization of principal of the Note, (iv) any other material economic term of the Loan (including, but not limited to, the aggregate Exit Fee payable across all notes), or (v) decrease the time periods during which Borrower is permitted to perform its obligations under the Loan Documents. In connection with the foregoing, Borrower covenants and agrees to modify the Cash Management Agreement to reflect the newly created components and/or mezzanine loans to the extent requested by Lxxxxx.
(d) If requested by Lender, Borrower shall provide Lender, promptly upon written request, with any financial statements, financial, statistical or operating information or other information as Lender shall determine necessary or appropriate (including items required (or items that would be required if the Securitization Liabilitieswere offered publicly) pursuant to Regulation AB under the Securities Act, or the Exchange Act, or any amendment, modification or replacement thereto) or required by any other legal requirements, in each case, in connection with any private placement memorandum, prospectus or other disclosure documents or materials or any filing pursuant to the Exchange Act in connection with the Securitization or as shall otherwise be reasonably requested by Lxxxxx, provided, in each case, the same is in Borrower’s possession or control or can be produced without undue burden.
Appears in 1 contract
Samples: Loan Agreement (W. P. Carey Inc.)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization (including a collateralized debt obligation (CDO) securitization). The transactions referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, each of Borrower and Guarantor shall assist Lender in satisfying the pledge of the Loans as collateral security for loans market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans (such asmarketplace or by the Rating Agencies in connection with any Secondary Market Transactions, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by to:
(ai) amending this Agreement provide or cause Mortgage Borrower to provide (A) updated financial and other information with respect to the Property (or any portion thereof), the Collateral (or any portion thereof), the business operated at the Property (or any portion thereof), Borrower, Mortgage Borrower, Mezzanine B Borrower, Guarantor, SPE Component Entity (as defined herein and in the Mortgage Loan Agreement), any Xxxxxx Intermediate Entity and Manager, (B) updated budgets relating to the Property, (C) 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 (or any portion thereof) (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies and (D) revisions to and other agreements with respect to the Property Documents in form and substance acceptable to Lender and the Rating Agencies;
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property (or any portion thereof), the Collateral (or any portion thereof), the Property Documents, Borrower, Mortgage Borrower, Mezzanine B Borrower and Borrower’s Affiliates, which counsel and opinions shall be satisfactory in form and substance to the Rating Agencies and reasonably satisfactory in form and substance to Lender;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may require; and
(iv) execute such amendments to the Loan Documents, the Mortgage Loan Documents, the Mezzanine B Loan Documents, the Property Documents and executing such additional documentsBorrower’s, Mortgage Borrower’s, Mezzanine B Borrower’s, any Xxxxxx Intermediate Entity’s or any SPE Component Entity’s (as reasonably requested by defined herein and in the Lenders in connection with the Securitization; provided that (iMortgage Loan Agreement) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information organizational documents as may be reasonably requested by Lender or requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support Rating Agencies or otherwise participating in the Securitizationto effect any Secondary Market Transaction, including any investors in a securitization entity including, without limitation, (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”A) to which amend and/or supplement the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements Independent Director provisions provided herein and therein, in light each case, in accordance with the applicable requirements of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilities.Rating Agencies,
Appears in 1 contract
Securitization. In addition to any other assignment permitted pursuant to this Section, The Loan Parties hereby acknowledge that (x) the Lenders, Lenders and their Affiliates and Approved Funds may (“Lender Parties”i) may sell pledge all or securitize the Loans (a “Securitization”) through the pledge portion of the Loans as collateral security for loans to such Lenders or their Affiliates, (ii) sell all or a Lender Party or portion of the assignment or issuance of Loans to a third party, (iii) issue direct or indirect interests in the Loans to their controlled Affiliates or (such asiv) otherwise securitize all or a portion of the Loans (any transaction described in clauses (i) through (iv), for instance, collateralized loan obligationsa “Securitization”), and (y) that the Lenders and their Affiliates may seek to have such Securitization may be loans to such Lenders or their Affiliates, such sold Loans, such direct or indirect interests or such securitization rated by Xxxxx’x, S&P or one or more other rating agencies (each, a rating agency“Rating Agency”). The Loan Parties shall reasonably cooperate with the Lender Parties Lenders and their Affiliates to effect the Securitization any and all Securitizations and to obtain a public or unpublished loan rating or a corporate rating from any Rating Agency requested by any Lender, including, without limitation, if so requested by a Lender, by (ai) meeting with representatives of such Rating Agency and discussing its business and affairs with such representatives to the extent required to obtain such rating, (ii) amending this Loan Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders such Lenders, in connection with the Securitization; provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower Securitization and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (biii) providing such information as may be reasonably requested by the Lenders or rating agencies such Lenders, in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, Obligations or any party providing credit support Securitization; provided that (a) the Loan Parties shall not be required to incur any out-of-pocket costs or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers expenses in connection with any action taken at the request of a Lender pursuant to this Section 12.08 unless such Lender reimburses the Loan Parties for such costs and expenses and (b) the Loan Parties shall not be required to take any action at the request of a Lender pursuant to this Section 12.08 that would (x) add any new, expand the scope of any existing, representations and warranties made or to be made by the Loan Parties or their Subsidiaries, (y) impose any additional covenants, events of default or obligations on the Loan Parties or their Subsidiaries or (z) impose any new, or expand any existing, conditions on the ability to draw Loans under this Loan Agreement or take other actions otherwise permitted under this Loan Agreement and the other Loan Documents. No Securitization shall (i) release any Lender from any of its obligations hereunder, (ii) restrict or limit an Agent’s discretion in connection with any amendment, supplement, waiver or other modification of any of the terms of this Loan Agreement or any other Loan Document or arise out (iii) substitute any pledgee, secured party or any other party to such Securitization for such Lender as a party hereto, and no change in ownership of or are based upon the omission or alleged omission to state therein a material fact required to Loans may be stated therein, or necessary in order to make the statements thereineffected, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing each case except pursuant to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization LiabilitiesSection 12.06.
Appears in 1 contract
Samples: Loan Agreement (Phi Inc)
Securitization. In addition (a) Borrower acknowledges and agrees that Lender may, at each party’s expense to any other assignment permitted pursuant to this Sectionthe extent provided for in accordance with Section 9.1.1(b), Loan Parties hereby acknowledge that consummate one or more private or public securitizations of rated single- or multi-class securities (x) the Lenders, their Affiliates and Approved Funds (“Lender PartiesSecurities”) may sell secured by or securitize evidencing ownership interests in all or any portion of the Loans Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (such sales, participations and/or securitizations, collectively, a “Securitization”). Xxxxxxxx acknowledges and agrees that Disqualified Persons may be holders or purchasers of Securities in connection with a Securitization.
(b) through At the pledge request of Lender, and to the Loans as collateral security for loans extent not already required to a Lender Party be provided by or the assignment or issuance on behalf of direct or indirect interests Borrower under this Agreement, Borrower shall provide information not in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization possession of Lender or which may be rated reasonably required by a rating agencyLender or take other actions reasonably required by Xxxxxx, in each case in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization, provided such information is in its possession and can be produced without undue burden or cost. The Loan Parties Lender shall reasonably cooperate with have the Lender Parties right to effect provide to prospective investors and the Securitization Rating Agencies any information in its possession, including, without limitation, by (a) amending this Agreement financial statements relating to Borrower, Guarantor, if any, the Properties and any Tenant of the Improvements. Borrower acknowledges that certain information regarding the Loan and the parties thereto and the Properties may be included in a private placement memorandum, prospectus or other Loan Documentsdisclosure documents. Borrower shall, at Xxxxxx’s request, at Xxxxxx’s sole cost and executing expense (other than with respect to Borrower’s attorneys’ fees and expenses), cooperate with Xxxxxx’s efforts to arrange for a Securitization in accordance with the market standards to which Lender customarily adheres and/or which may be required by prospective investors and/or the Rating Agencies in connection with any such additional documentsSecuritization. Xxxxxxxx agrees to review, as reasonably requested by the Lenders at Xxxxxx’s request in connection with the Securitization; provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect , the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms highlighted sections of the Loans, (b) providing such information as may be reasonably requested by Disclosure Documents to the Lenders or rating agencies in connection with the rating extent of the Loans or information that was provided by Xxxxxxxx and relates to Borrower, Guarantor, and/or the Securitization, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities Properties (the “Securitization LiabilitiesCovered Disclosure Information”) and shall confirm that the factual statements and representations contained in such highlighted sections (to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out extent of or are based upon any Provided Information therein) do not contain any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required or omit to be stated therein, or state a material fact necessary in order to make the statements thereinmade, in the light of the circumstances under which they were made, not misleading.
(c) Borrower agrees to make upon Xxxxxx’s written request, without limitation, all structural or other changes to the Loan (including delivery of 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 indemnity new notes or modified note may have different interest rates and amortization schedules), modifications to any documents evidencing or securing the Loan, creation of one or more mezzanine loans (including amending Borrower’s organizational structure to provide for one or more mezzanine borrowers), delivery of opinions of counsel acceptable to the Rating Agencies or potential investors and addressing such matters as the Rating Agencies or potential investors may require; provided, however, that in creating such new notes or modified notes or mezzanine notes Borrower shall survive any transfer by not be required to modify (i) the Lenders or their successors or assigns weighted average interest rate payable under the Note (except that the weighted average interest rate may subsequently change due to (1) the application of the Loansfunds following an Event of Default, and (ii2) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons application of Net Proceeds in connection with defending a mandatory prepayment as a result of a Condemnation or Casualty), (ii) the stated maturity of the Note, (iii) the aggregate amortization of principal of the Note, (iv) any other material economic term of the Loan (including, but not limited to, the aggregate Exit Fee payable across all notes), or (v) decrease the time periods during which Borrower is permitted to perform its obligations under the Loan Documents. In connection with the foregoing, Borrower covenants and agrees to modify the Cash Management Agreement to reflect the newly created components and/or mezzanine loans to the extent requested by Xxxxxx.
(d) If requested by Lender, Borrower shall provide Lender, promptly upon written request, with any financial statements, financial, statistical or operating information or other information as Lender shall determine necessary or appropriate (including items required (or items that would be required if the Securitization Liabilitieswere offered publicly) pursuant to Regulation AB under the Securities Act, or the Exchange Act, or any amendment, modification or replacement thereto) or required by any other legal requirements, in each case, in connection with any private placement memorandum, prospectus or other disclosure documents or materials or any filing pursuant to the Exchange Act in connection with the Securitization or as shall otherwise be reasonably requested by Xxxxxx, provided, in each case, the same is in Borrower’s possession or control or can be produced without undue burden.
Appears in 1 contract
Securitization. In addition The Borrower and the General Partner shall -------------- use commercially reasonable best efforts to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) cooperate with NACC in its activities in connection with the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) through the pledge sale of the Loans Loan as collateral security for loans to a Lender Party whole loan or any securitization of the assignment or Loan (the "Securitization"), including obtaining ratings -------------- by the Rating Agencies. The Securitization will involve the issuance of direct rated single- or indirect multi-class securities secured by or evidencing ownership interests in the Loans Transaction Documents (such as, for instance, collateralized loan obligationsthe "Securities"), and (y) such Securitization may be rated by a rating agency. The Loan Parties Such cooperation shall reasonably cooperate with the Lender Parties to effect the Securitization including---------- include, without limitation, by the obligation to:
(a) amending this Agreement maintain the ownership of the Properties in an entity that permits the Borrower to comply with its obligations under clauses (x) and (z) of Section 5.2;
(b) to the extent permitted under its existing partnership agreement without the consent of its limited partners, structure and maintain the organizational, operational and financial affairs of the Borrower and the other Loan DocumentsGeneral Partner, and executing such additional documents(collectively, as reasonably the "Entities") to enable its counsel to render -------- a reasoned opinion if requested by the Lenders Rating Agencies in connection with form and substance customary or required for rating the Securitization; provided Securities (the "Substantive Consolidation ------------------------- Opinion") that upon a petition for bankruptcy by or against Host Marriott (ior ------- the General Partner) under the United States Bankruptcy Code, neither Host Marriott as a debtor in possession nor its bankruptcy trustees nor creditors nor any such amendment other party in interest would have sufficient basis to cause a court to order the substantive consolidation of the assets and liabilities of the General Partner or additional documentation does not impose material additional costs on the Borrower and (ii) any such amendment or additional documentation does not materially adversely affect in the rightscase of a Host Marriott bankruptcy, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the LoansBorrower, in the case of a General Partner bankruptcy, with those of the debtor in bankruptcy, which counsel and which opinion shall be satisfactory to NACC and the Rating Agencies;
(bc) providing provide such financial and other information with respect to each Property, the Borrower, and, if such information is reasonably available to the Borrower, the Manager, as may be requested by the Rating Agencies or as may be reasonably requested by NACC, including, without limitation, audits or agreed- upon procedures of operating cash flow and Net Operating Income on an individual and aggregate Property basis, occupancy statistics, and average rents and quarterly and annual financial statements for each Property (reviewed and in the Lenders case of annual financial statements audited) by a firm of certified public accountants acceptable to NACC and the Rating Agencies to the extent customarily given in similar transactions;
(d) prepare and deliver such agreements and instruments relating to the Note, the Securities, the Properties and the Entities, including (A) agreements to indemnify the Rating Agencies, NACC and any servicer or rating agencies trustee, to the extent customarily given in commercial mortgage-backed securities transactions, and (B) amendments of any of the Transaction Documents that are necessary to effect the Securitization, in form and scope satisfactory to the Rating Agencies and reasonably satisfactory to NACC;
(e) perform or permit to be performed such appraisals, surveys, site inspections, market studies, current environmental reviews and reports (Phase I's, including, without limitation, testing for asbestos, lead paint or radon gas and Phase II's and other environmental investigations recommended by environmental consultants), structural engineering reports (which shall include an analysis of requirements for deferred maintenance and ongoing capital expenditure and furniture, fixtures and equipment reserve requirements), reviews of property, casualty, business interruption, earthquake, flood, liability and title insurance and other due diligence items customarily requested by nationally recognized underwriters in connection with the rating origination and securitization of comparably sized commercial real estate loans or by the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers Rating Agencies in connection with any rating the Loan Document or arise out of or are based upon the omission or alleged omission Securities; provided, -------- however, NACC shall use its best efforts to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of limit the circumstances under which they were made------- the Borrower or the General Partner will be required to duplicate its efforts or third party costs in complying with its obligations under this clause (e);
(f) provide business plans and budgets relating to the Properties as may be requested by the Rating Agencies;
(g) cause counsel to render opinions (which may be reasoned opinions) with respect to the Properties, not misleadingthe Entities, and such indemnity the Transaction Documents as to bankruptcy remoteness and other matters customary in securitization transactions, which may be requested by 50 the Rating Agencies in form and substance customary or required for Rating the Securities which counsel and which opinion shall survive any transfer by be satisfactory to the Lenders or their successors or assigns of Rating Agencies and reasonably satisfactory to NACC; provided, however, that if the Loans, and (ii) agreeing -------- ------- Rating Agencies request opinions subsequent to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons Closing Date in connection with defending the Securitization Liabilitiesthat are materially different from the opinions delivered on the Closing Date, the Lender shall bear the fees and expenses incurred by counsel in rendering such opinions;
(h) make such representations and warranties with respect to the Properties, the Entities, and the Transaction Documents as are customary in securitization transactions and as may be requested by the Rating Agencies and reasonably requested by NACC and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Transaction Documents;
(i) cooperate with the Lender in providing to the Rating Agencies such information as is customarily provided in connection with annual reviews conducted in commercial mortgage backed securities transactions similar to the Securitization;
(j) cooperate with NACC in the preparation, at NACC's cost, of a private placement memorandum, prospectus, prospectus supplement or other disclosure document to be used by NSI or any of its Affiliates to privately place or publicly distribute the Loan as a whole loan or the Securities in a manner and to the extent that the same satisfy the requirements of the Securities Act and applicable state securities laws; and
(k) subject to the provisions of Section 5.6(B), permit NACC to provide to the Rating Agencies, potential investors in the Securities and others as may be required to effect the Securitization or the sale of the Loan as a whole loan, the information provided to NACC by the Borrower and the Manager and their respective Affiliates in connection with the transactions contemplated by this Agreement. Any and all due diligence materials (including without limitation appraisals, engineering reports and environmental reports) shall be addressed to and shall run to the benefit of NACC and its successors and assigns, the Rating Agencies and the Borrower, and shall, upon delivery, become the property of NACC, its successors and assigns and the Borrower.
Appears in 1 contract
Samples: Loan Agreement (Fairfield Inn by Marriott LTD Partnership)
Securitization. In addition MHP and the General Partner shall use -------------- commercially reasonable best efforts to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) through the pledge of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders NACC in its activities in connection with the sale of the MHP Loan as a whole loan or any securitization of the MHP Loan (the "Securitization; provided "), including obtaining ratings by the -------------- Rating Agencies. The Securitization will involve the issuance of rated single- or multi-class securities secured by or evidencing ownership interests in the Transaction Documents (the "Securities"). Such cooperation shall include, ---------- without limitation, the obligation to:
(a) maintain the ownership of the MHP Properties in an entity that permits it to comply with its obligations under clauses (ix) any such amendment or additional documentation does not impose material additional costs on Borrower and (iiz) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, Section 5.2;
(b) providing to the extent permitted under MHP's Second Amended and Restated Agreement of Limited Partnership without the consent of its limited partners, in the case of MHP, structure and maintain its organizational, operational and financial affairs and the affairs of the General Partner (collectively, the "Entities") to enable its counsel to render a reasoned opinion if requested by -------- the Rating Agencies in form and substance customary or required for rating the Securities (the "Substantive Consolidation Opinion") that upon a petition for --------------------------------- bankruptcy under the United States Bankruptcy Code, neither Host Marriott as a debtor in possession nor its bankruptcy trustees nor creditors should cause a court to order the substantive consolidation of MHP's assets and liabilities or those of the General Partner with those of Host Marriott, which counsel and which opinion shall be satisfactory to NACC and the Rating Agencies;
(c) provide such financial and other information with respect to it and each of the MHP Properties as may be requested by the Rating Agencies or as may be reasonably requested by the Lenders NACC, including, without limitation, audits or rating agencies in connection with the rating agreed-upon procedures of the Loans or the Securitizationoperating cash flow and Net Operating Income on an individual and aggregate MHP Property basis, occupancy statistics, and average rents and quarterly and annual financial statements for each MHP Property (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating reviewed and in the Securitization, including any investors in case of annual financial statements audited) by a securitization entity (collectively, firm of certified public accountants acceptable to NACC and the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party Rating Agencies to the Lender Partiers extent customarily given in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilities.similar transactions;
Appears in 1 contract
Samples: Loan Agreement (Marriott Hotel Properties Ii Limited Partnership)
Securitization. In addition to any other assignment permitted pursuant to this Section(A) PSI, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates PSCC and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) through the pledge of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests CRIIMI MAE will act in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders good faith in connection with the Securitization; , to negotiate and execute the following agreements:
(i) if required, one or more loan sale agreements (each, a "Mortgage Loan Sale Agreement") between PSCC and CRIIMI MAE (or a subsidiary of CRIIMI MAE) or between PMCC and CRIIMI MAE or such subsidiary, as the case may be, for such Securitization providing for, among other things,
(a) the sale of the Mortgage Loans and the PMCC Loans;
(b) the payment of the costs and expenses of the transaction by CRIIMI MAE (or, if Loans held by a third party are included in the Securitization, by CRIIMI MAE and such third party);
(c) the making of representations and warranties by PSCC, CRIIMI MAE and PMCC reasonably satisfactory to PSI and satisfactory to the Rating Agencies in connection with such Securitization, provided that (I) any such representations and warranties made by PMCC with respect to the PMCC Loans shall be limited to corporate matters comparable to the representations and warranties contained in Section 2.02(A) and such additional representations and warranties as are provided for in the PMCC Agreement; (II) the representations and warranties to be made by PSCC shall be limited to corporate matters comparable to the representations and warranties contained in Section 2.02(A), ownership of the Mortgage Loans and matters relating to Mortgage Loans funded through the Facility that arose during the Aggregation Period; (III) none of PMCC, PSCC, or PSI shall be deemed to have made or be required to make any representations or warranties with respect to a particular Mortgage Loan or PMCC Loan, as the case may be, if and to the extent CRIIMI MAE or CRIIMI MAE Services as servicer under the Interim Servicing Agreement becomes aware such representation and warranty is incorrect during the term of this Agreement or the Interim Servicing Agreement, and (IV) if the Rating Agencies require additional or different representations and warranties in connection with such Securitization, CRIIMI MAE will make such additional or different representations and warranties to the extent that the truth and correctness of such representations and warranties can be substantiated through reasonable due diligence efforts and expenditures; and
(d) CRIIMI MAE providing PSI, its officers, directors, affiliates and controlling persons with a reasonable and customary "10b-5" indemnity reasonably satisfactory to PSI with respect to any disclosure document delivered in connection with such transaction but excluding (i) any portion thereof with respect to PSI, its plan of distribution of the related CMBSs and the structure of the related CMBSs (consisting principally of the descriptions of the priority of, and allocation of distributions and losses to, the CMBS's, yield and detrimental tables) such amendment or additional documentation does not impose material additional costs on Borrower information, the "PSI Information"); and (ii) any information relating to Mortgage Loans and related Mortgage Properties that were not originated or underwritten by CRIIMI MAE through the Facility or are not then being serviced by CRIIMI MAE; and
(e) PSI providing CRIIMI MAE and its officers, directors, affiliates and controlling persons a reasonable and customary "10b-5" indemnity reasonably satisfactory to CRIIMI MAE with respect to the PSI Information;
(ii) if the CMBSs are to be issued by or through a Securitization Trust, as defined below, a pooling and servicing agreement (each, a "Pooling and Servicing Agreement") among CRIIMI MAE and or a subsidiary (which need not be a wholly-owned subsidiary) of CRIIMI MAE, as depositor, CRIIMI MAE Services, as master servicer and special servicer, and a trustee (the "Trustee"), to be on substantially the same terms as Rating Agencies allow for conduit securitizations, providing for, among other things, the deposit of the Pooled Loans into a trust (a "Securitization Trust"), the issuance of one or more classes of mortgage pass-through certificates ("Certificates") evidencing beneficial ownership interests in the Securitization Trust, and the servicing and special servicing of the Pooled Loans deposited into the Securitization Trust, with such amendment or additional documentation does not materially adversely affect modifications as the rightsRating Agencies may require and the parties thereto shall otherwise agree;
(iii) if the CMBSs are to be issued other than through to a Securitization Trust, or materially increase a trust indenture (the obligations, "Indenture") providing for the issuance of Borrower the CMBSs and the pledge of the Pooled Loans to the trustee under the Loan Documents or change or affect in a manner adverse to Borrower Indenture (the financial terms "Indenture Trustee") as collateral security for the obligations of the Loansissuer of the CMBSs, to be on substantially the same terms as Rating Agencies allow in similar securitizations and otherwise containing provisions customarily set forth in trust indentures for the issuance of CMBSs including, if the CMBSs are to be registered under the Securities Act, provisions required for the qualification of the Indenture under the Trust Indenture Act of 1939, as amended;
(biv) providing such information if the CMBSs are to be issued under an Indenture, a servicing agreement (the "Servicing Agreement") between CRIIMI MAE and CRIIMI MAE Services as may servicer, master servicer and special servicer, to be reasonably requested by on substantially the Lenders or rating agencies same terms as Rating Agencies allow in similar CMBS securitizations and (if the Indenture Trustee is not a party thereto) assigned to the Indenture Trustee as additional collateral security under the Indenture; and
(v) an underwriting agreement (the "Underwriting Agreement") between CRIIMI MAE and PSI relating to the sale of any publicly-offered CMBSs, a purchase agreement (the "Purchase Agreement") between CRIIMI MAE and PSI, as dealer, with respect to any privately-offered CMBSs with respect to which PSI has elected to act as principal, and a private placement agency agreement ("Placement Agreement") between CRIIMI MAE and PSI, as broker, with respect to any privately offered CMBSs with respect to which PSI has elected to act as placement agent, each in connection with the rating sale of any privately-offered CMBSs, providing for underwriting, purchase or placement fees, as applicable. The underwriting, purchase or placement fee (collectively "Underwriting Fee" shall be equal to (a) 0.625% of the Loans or the Securitization, face amount of investment grade rated CMBSs and (cb) providing a certificate mutually agreeable Underwriting Fee with respect to any non-investment grade rated CMBSs (i) agreeing except that no Underwriting Fee shall be payable with respect to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered Certificates retained by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilities.CRIIMI MAE); and
Appears in 1 contract
Samples: Whole Loan Origination Facility Agreement (Criimi Mae Inc)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization. The transaction referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge of the Loans as collateral security for loans market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans (such asmarketplace or by the Rating Agencies in connection with any Secondary Market Transactions, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by to:
(ai) amending this Agreement provide (A) updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Guarantor, SPE Component Entity and Manager, (B) updated budgets relating to the Properties and (C) 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 Properties (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies and (D) use commercially reasonably efforts to obtain revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and the Rating Agencies;
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to matters of enforceability of the Loan Documents under New York law, substantive non-consolidation, fraudulent conveyance, matters of Delaware or Maryland (as applicable) and federal bankruptcy law relating to limited liability companies, true sale and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Borrower and Borrower’s Affiliates, which counsel and opinions shall be satisfactory in form and substance to Lender and the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents, modified as necessary to be current as of such date, and executing such additional documents, representations and warranties as the Rating Agencies may reasonably requested by the Lenders in connection with the Securitizationrequire; provided that and
(iiv) any execute such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under amendments to the Loan Documents, the Property Documents (subject to the provisions of Section 11.1(b)(i)(D) above) and Borrower’s or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies or rating agencies otherwise to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein (including, without limitation, to add a second Independent Director), in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan into two or more components and/or additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the foregoing, a “Loan Bifurcation”) and (C) to modify any payment dates and interest period start dates and end dates under the Loan Documents, by up to ten (10) days; provided, however, that Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would change the interest rate, the stated maturity (except as provided in subclause (C) above) or the amortization of principal set forth herein, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which components/notes shall have the rating same weighted average coupon of the Loans original Note (without giving effect to any deviation attributable to the imposition of any rate of interest at the Default Rate or prepayments occurring pursuant to Section 2.7(b) or 2.7(c) hereof). Such amendments shall not (a) alter the economic terms of the Loan except as expressly provided in this Section 11.1(b)(iv) or (b) negatively affect in any manner the rights and obligations of Borrower or Guarantor under the Loan Documents other than to a de minimis extent or except as expressly provided in this Section 11.1(b)(iv). Notwithstanding anything to the contrary contained in this Agreement or the Securitizationother Loan Documents, other than costs and expenses relating to the delivery of financial statements already required pursuant to Section 4.12 hereof, in connection with Borrower’s complying with requests made under this Section 11.1(b), Borrower shall not be responsible for any material costs and expenses incurred by Borrower in connection with such compliance. Other than counsel fees which are incurred by Borrower with respect to the New York enforceability opinion referenced in Section 11.1(b)(ii) hereof, which Borrower agrees to deliver at its cost and expense, Lender agrees to pay for Borrower’s reasonable counsel fees in connection with Borrower’s complying with requests made under this Section 11.1(b) provided that Lender reasonably approves the counsel selected by Borrower to assist in connection with such compliance.
(c) providing a certificate Upon request, Borrower shall furnish to Lender from time to time such financial data and financial statements as Lender reasonably determines to be necessary, advisable or appropriate for complying with any applicable legal requirements (i) agreeing including those applicable to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the SecuritizationServicer (including, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party without limitation and to the Lender Partiers in connection with any Loan Document extent applicable, Regulation AB)) within the timeframes necessary, advisable or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary appropriate in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and comply with such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilitiesrequirements.
Appears in 1 contract
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize otherwise transfer the Loans Loan (a “Securitization”or any portion thereof and/or interest therein), (ii) through the pledge of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect sell participation interests in the Loans Loan (such as, for instance, collateralized loan obligationsor any portion thereof and/or interest therein) or (iii) to securitize the Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization. The transactions referred to in clauses (i), (ii) and (yiii) such above shall hereinafter be referred to collectively as "Secondary Market 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 rated reasonably required in the marketplace or by a rating agency. The Loan Parties shall reasonably cooperate the Rating Agencies in connection with the Lender Parties to effect the Securitization any Secondary Market Transactions, including, without limitation, by to:
(ai) amending this Agreement provide (A) updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, Sponsor, SPE Component Entity and Manager, (B) updated budgets relating to the Property, (C) 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 "Updated Information"), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies and (D) revisions to and other agreements with respect to the Property Documents in form and substance acceptable to Lender and the Rating Agencies;
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Xxxxxx, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Property Documents, Borrower and Borrower's Affiliates, which counsel and opinions shall be satisfactory in form and substance to Lender and the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may require; and
(iv) execute such amendments to the Loan Documents, the Property Documents and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) Xxxxxxxx's or any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information SPE Component Entity's organizational documents as may be reasonably requested by Xxxxxx or requested by the Lenders Rating Agencies or rating agencies otherwise to effect LOAN AGREEMENT – Page 105 41458-112/Patuxent Crossing (MD) and Coliseum Marketplace (VA) any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan into two or more components and/or additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the foregoing, a "Loan Bifurcation") and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would change the interest rate, the stated maturity (except as provided in subclause (C) above) or the amortization of principal set forth herein, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the same initial weighted average coupon of the original Note.
(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 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, net operating income, required under Item 1112(b)(1) of Regulation AB, if Xxxxxx 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 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 rating preparation of the Loans or Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (cC) providing 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 certificate filing pursuant to the Exchange Act in connection with or relating to the Securitization (ian "Exchange Act Filing") agreeing is not required. If requested by Xxxxxx, Borrower shall furnish to indemnify Lender financial data and/or financial statements for any tenant of the Property (to the extent Borrower is in possession of such information or can reasonably obtain from such tenant) if, in connection with a Securitization, Lender Partiesexpects 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. LOAN AGREEMENT – Page 106 41458-112/Patuxent Crossing (MD) and Coliseum Marketplace (VA)
(d) All financial data and statements provided by Borrower hereunder 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 this Section 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 statements (audited or unaudited) provided by Borrower under this Section shall be accompanied by an Officer's Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (d).
(e) If requested by Xxxxxx, Borrower shall provide Lender, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall determine to be required pursuant to Regulation AB or any party providing credit support amendment, modification or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages replacement thereto or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers other legal requirements in connection with any Loan Disclosure Document or arise out of any Exchange Act Filing or are based upon as shall otherwise be reasonably requested by Lender.
(f) In the omission or alleged omission to state therein event Lender determines, in connection with a material fact Securitization, that the financial data and financial statements required to be stated therein, or necessary in order to make comply with Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the statements thereinprovisions of this Section, in light of the circumstances under which they were made, not misleadingLender may reasonably request, and Borrower shall promptly provide, such indemnity shall survive any transfer by the Lenders other financial data and financial statements as Lender determines to be necessary or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties appropriate for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilitiescompliance.
Appears in 1 contract
Securitization. In addition to Borrower hereby acknowledges that Lender, any other assignment permitted pursuant to this Sectionof its Affiliates, Loan Parties hereby acknowledge that (x) the Lendersits successors or assigns, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) Loan through the pledge issuance of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such asCertificates, for instance, collateralized loan obligations), and (y) such Securitization may which will be rated by a rating agencythe Rating Agencies (the "Securitization"). The Loan Parties shall reasonably Borrower agrees that it will cooperate fully with Lender and the Rating Agencies in connection with the Lender Parties to effect the Securitization Securitization, including, without limitationbut not limited to, by (a) amending this Agreement and entering into nonmaterial amendments to the other Loan Documents, and executing such additional documents, as reasonably requested Documents to the extent required by the Lenders Rating Agencies or otherwise in connection with the Securitization; provided that (ib) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect assisting in the rights, or materially increase the obligations, preparation of Borrower under offering documents describing the Loan Documents or change or affect and the Securitization in a manner adverse to Borrower that satisfies the financial terms requirements of the Loansapplicable federal and state securities laws, by (bwithout limitation) (i) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, therewith and (ii) agreeing to reimburse the Lender Parties acting reasonably and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons promptly in connection with defending its review and approval of the relevant portions of the offering documents; (c) causing to be rendered such customary opinion letters as shall be requested by the Rating Agencies, including, without limitation, an opinion letter in substantially the form attached hereto as Exhibit N (subject to changes in law or fact after the date hereof and further subject to changes requested by the Rating Agencies (to the extent such changes are consistent with applicable law or facts)) and an opinion letter from each real estate counsel to Borrower stating that the assignment of the Loan and the Loan Documents to Trustee is enforceable; (d) representing that as of the Securitization Liabilities.Closing Date (i) the Principal Indebtedness does not exceed 125% of the Tax Fair Market Value of the Mortgaged Property and (ii) the fair market value of any personal property or other property that is part of the Mortgaged Property that is not "qualifying real property" within the meaning of Treasury Regulation Section 1.593-11(b) does not exceed the excess, if any, of the Tax Fair Market Value of the Mortgaged Property over the Principal Indebtedness, and providing Lender with any supporting materials reasonably requested by Lender; and (e) at reasonable times and upon reasonable notice, showing potential Certificateholders the
Appears in 1 contract
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loans Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (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”) through . Any certificates, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the pledge of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization Loan may be rated subject to one or more Secondary Market Transactions.
(b) If requested by a rating agency. The Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably cooperate required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Lender Parties to effect Properties, the Securitization business operated at the Properties, Borrower, Sponsor and the Manager, including, without limitation, by the information set forth on Exhibit C attached hereto, (aB) amending this Agreement and provide updated budgets relating to the other Loan DocumentsProperties, and executing such additional documents(C) provide updated appraisals, as reasonably requested by 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 Lenders Properties (the “Updated Information”) which were obtained in connection with the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantor’s New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents 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 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, (B) 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 remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date and the payment of the Monthly Amortization Amount), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization; provided , 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 Properties alone or the Properties 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 amendment Securitization, may equal or additional documentation does 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 impose material additional costs on Borrower 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 amendment 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 Properties 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 Properties is 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) 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 Properties if, in connection with a Securitization, Lender reasonably determines 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 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 (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) 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.
(e) If Lender 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 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) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional documentation does not materially adversely affect the rightsfinancial statements, or materially increase the obligationsfinancial, of Borrower under the Loan Documents statistical or change operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or affect in Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a manner adverse to Borrower the financial terms of the Loans, (b) providing such information Securitization or as may shall otherwise be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization LiabilitiesLender.
Appears in 1 contract
Securitization. In addition to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge (a) Borrower understands that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) through the pledge certain of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization Provided Information may be rated by a rating agency. The Loan Parties shall reasonably cooperate included in disclosure documents in connection with the Lender Parties to effect the Securitization Securitization, including, without limitation, by a prospectus, prospectus supplement, offering memorandum or private placement memorandum (aeach, a “Disclosure Document”) amending this Agreement and may also be included in filings with the other Loan DocumentsSecurities and Exchange Commission pursuant to the Securities Act or the Exchange Act, or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and executing such additional documentsservice providers relating to the Securitization. Subject to the terms of Section 13.4 hereof, as reasonably requested in the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Borrower Principal will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Lenders Disclosure Document accurate and complete in all material respects.
(b) Borrower agrees to provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency “term sheets” or presentations relating to the Securitization; provided Property and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification certificate (A) certifying that Borrower has diligently examined such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan), as applicable, including without limitation, the sections entitled “Special Considerations”, and/or “Risk Factors”, and “Certain Legal Aspects of the Mortgage Loan”, or similar sections, in each and every case, to the extent relating to Borrower, Borrower Principal, Manager, the Loan, the Loan Documents and the Property, and any risks or special considerations relating thereto and only thereto, and that, to Borrower’s knowledge, such sections do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (B) indemnifying Lender (and for purposes of this Section 13.5, Lender hereunder shall include its officers and directors) and the Affiliate of Lender that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and has filed the registration statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect Person described in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify or (ii), an “Issuer Person”), and each director and officer of any Issuer Person, and each Person or entity who controls any Issuer Person within the Lender Parties, meaning of Section 15 of the Securities Act or any party providing credit support or otherwise participating in Section 20 of the Securitization, including any investors in a securitization entity Exchange Act (collectively, the “Securitization PartiesIssuer Group”), and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any such Person within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) Losses to which Lender, the Lender Parties Issuer Group or such Securitization Parties may become subject insofar the Underwriter Group actually incur as the Securitization Liabilities arise out a result of or are based upon Borrower having had knowledge of any untrue statement or alleged untrue statement of any material fact contained in such sections (including any Loan Document Investor or in any writing delivered by Rating Agency “term sheets” or on behalf of any Loan Party presentations relating to the Lender Partiers in connection with any Loan Document Property and/or the Loan) or arise out of or are based upon the knowing omission or alleged omission to state therein a material fact required to be stated therein, in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan) or necessary in order to make the statements thereinin such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan) or in light of the circumstances under which they were made, not misleading (collectively the “Securities Liabilities”) and (C) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any actual out of pocket legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender or any member of the Issuer Group or Underwriter Group by or on behalf of Borrower in connection with the preparation of the memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan) or in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower, operating statements, rent rolls, environmental site assessment reports and Property condition reports with respect to the Property. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and shall be applicable based on information previously provided by Borrower and Borrower Principal or their Affiliates if Borrower does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower agrees to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon the knowing omission or alleged omission by Borrower to state in the Provided Information a material fact required to be stated in the Provided Information in order to make the statements in the Provided Information, in light of the circumstances under which they were made not misleading and (ii) reimburse Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, the Issuer Group or the Underwriter Group in connection with defending or investigating the Securities Liabilities.
(d) Promptly after receipt by an indemnified party under this Section 13.5 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 13.5, notify the indemnifying party in writing of the commencement thereof, but the omission to so notify the indemnifying party will not relieve the indemnifying party from any liability which the indemnifying party may have to any indemnified party hereunder except to the extent that failure to notify causes prejudice to the indemnifying party. In the event that any action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it (or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. After notice from the indemnifying party to such indemnified party under this Section 13.5 the indemnifying party shall be responsible for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. The indemnifying party shall not be liable for the expenses of more than one such separate counsel unless an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another indemnified party.
(e) In order to provide for just and equitable contribution in circumstances in which the indemnity agreements provided for in Section 13.5(c) or Section 13.5(d) is or are for any reason held to be unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which would otherwise be indemnifiable under Section 13.5(c) or Section 13.5(d), the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages or liabilities (or action in respect thereof); provided, however, that no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s, Borrower’s and Borrower Principal’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower and Borrower Principal hereby agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation.
(f) Borrower shall indemnify Lender and its officers, directors, partners, employees, representatives, agents and Affiliates against any Losses to which Lender and each of its officers, directors, partners, employees, representatives, agents and Affiliates, may become subject in connection with any indemnification to the Rating Agencies in connection with issuing, monitoring or maintaining the Securities insofar as the Losses arise out of or are based upon any untrue statement of any material fact in any information provided by or on behalf of Borrower to the Rating Agencies (the “Covered Rating Agency Information”) or arise out of or are based upon the knowing omission by Borrower to state a material fact in the Covered Rating Agency Information required to be stated therein or necessary in order to make the statements in the Covered Rating Agency Information, in light of the circumstances under which they were made, not misleading.
(g) Notwithstanding anything to the contrary contained in this Section 13.5, Borrower shall have the opportunity to review and comment upon the Disclosure Document prior to the indemnification referred to in Section 13.5(b)(ii)(B) becoming effective. Any such indemnity shall survive any transfer indemnification by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons Borrower in connection with defending any Securitization or Loan Bifurcation shall, in all events, be limited to the Securitization Liabilitiesportion of the Disclosure Document reviewed by Borrower and shall exclude, in all events, any comments to the draft Disclosure Document that were not incorporated into the final Disclosure Document.
(h) The liabilities and obligations of Borrower and Lender under this Section 13.5 shall survive the satisfaction of this Agreement and the satisfaction and discharge of the Debt.
Appears in 1 contract
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization. The transactions referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market Transactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”) through the pledge of the Loans as collateral security for loans to a Lender Party . Any certificates, notes or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders securities issued in connection with a Securitization are hereinafter referred to as “Securities”. Notwithstanding the foregoing, Lender agrees that in the event it effects one or more Securitizations of any portion of the Loan consisting of a pooled asset Securitization, the portion of the Loan contributed to such Securitization shall not exceed twenty percent (20%), of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization; provided that .
(ib) any such amendment or additional documentation does not impose material additional costs on If requested by Lender, Borrower and Guarantor shall cooperate with 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 in connection with any Secondary Market Transactions (ii) but in no event shall such cooperation result in any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, in any obligations of Borrower or rights of Lender or decrease in any rights of Borrower or obligations of Lender under the Loan Documents or change in any of the economic or affect monetary provisions of the Loan or the Loan Documents and not result in a manner adverse any “rate creep” under the Loan Agreement (other than due to the occurrence and continuance of an Event of Default), Borrower acknowledging and agreeing that Borrower and/or Guarantor complying with requests by Lender pursuant to, and in accordance with, this Section 11.1 in and of itself shall not be deemed to increase any obligations of Borrower or decrease any rights of Borrower) which cooperation shall, include, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Guarantor, SPE Component Entity and any Affiliated Manager, and updated budgets relating to the Properties, which (in each case) are available or reasonably obtainable using systems of Borrower that are currently in place (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and acceptable to the Rating Agencies, (B) 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 Properties and (C) use commercially reasonable efforts to obtain revisions with respect to the Property Documents and Ground Leases as requested by the Rating Agencies in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies;
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Lender and the Rating Agencies, as to substantive non-consolidation, matters of Delaware and federal bankruptcy law relating to limited liability companies with respect to Borrower the financial terms and SPE Component Entities and due execution and enforceability of the LoansLoan Documents, customary in Secondary Market Transactions or required by the Rating Agencies, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and satisfactory in form and substance to the Rating Agencies;
(biii) providing provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents consistent with the facts covered by such information representations and warranties as they exist on the date thereof; and
(iv) execute such amendments to the Loan Documents and Borrower’s or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies in order to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan into two or rating agencies more components, re-allocating the Loan among existing components or existing Notes, reducing the number of components of the Loan or of any Note and/or creating additional separate notes and/or creating additional senior/subordinate note structure(s), including, without limitation, re-allocating the principal amounts of the Loan (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative monthly payment dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that (I) Borrower and/or Guarantor shall not be required to so modify or amend any Loan Document if such modification or amendment would change any economic or non-economic term, including without limitation the interest rate or the stated maturity (except as would not have any adverse effect on Borrower, Guarantor and/or any of their Affiliates) or otherwise increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents or increase the rights or reduce the obligations of Lender, except in connection with a Loan Bifurcation which may result in varying fixed interest rates but will have the rating same weighted average coupon of the Loans original Note throughout the term (i.e., there shall be no “rate creep”) (except following an Event of Default) and (II) none of Borrower nor any SPE Component Entity shall be required to modify its organizational structure or make any other modification, if such modification would cause it or any of its Affiliates or direct or indirect owners to incur any additional tax liability or suffer other adverse consequences. Borrower and Lender acknowledge and agree that the Securitization, execution of any Loan Bifurcation in accordance with terms and conditions hereof shall not in and of itself increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents.
(c) providing If, at the time a certificate Disclosure Document is being prepared for a Securitization, Lender reasonably expects that Borrower 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 reasonable request the following financial information:
(i) agreeing 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 ten percent (10%), but be less than twenty percent (20%), of the aggregate principal amount of all mortgage loans included or expected to indemnify the Lender Parties, or any party providing credit support or otherwise participating be included in the Securitization, including net operating income for the Property and the Related Properties or selected financial data as required under Item 1112(b)(1) of Regulation AB, or
(ii) If Lender reasonably expects that the principal amount of the Loan together with any investors 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.
(d) In the event all or a portion of the Loan is included in a securitization entity (involving a registered public offering of Securities pursuant to the Securities Act, and if Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the “Securitization Parties”Properties alone or the Properties and the Related Properties, collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, net operating income for the Property or Related Properties or 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 any losses, claims, damages so long as such entity or liabilities entities are a Significant Obligor and either (the “Securitization Liabilities”x) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party filings pursuant to the Lender Partiers Exchange Act in connection with any Loan Document or arise out of or relating to the Securitization (an “Exchange Act Filing”) are based upon the omission or alleged omission to state therein a material fact required to be stated thereinmade under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of Securities under Regulation AB or applicable Legal Requirements.
(e) Any financial data or financial statements required pursuant to Section 11.1(d) above shall be furnished to Lender (1) with respect to quarterly reporting, not later than forty-one (41) days after the end of the fiscal quarter of Borrower and (2) with respect to all other reporting, no later than five (5) Business Days prior to the date required pursuant to Regulation AB.
(f) If requested by Lender, Borrower shall provide Lender, promptly 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 five (5) Business Days following notice from Lender), with any other or additional financial statements, or necessary in order financial, statistical or operating information, as Lender shall reasonably determine to make the statements thereinbe required pursuant to Regulation AB, in light of the circumstances under which they were madeor any amendment, not misleading, and such indemnity shall survive any transfer by the Lenders modification or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal replacement thereto or other expenses reasonably incurred Legal Requirements relating to a Securitization.
(g) All financial data and statements provided by such Persons Borrower hereunder in connection with defending a Securitization shall meet (and shall be accompanied by such auditors’ reports or consents and such certificates as may be necessary to comply with) the Securitization Liabilitiesrequirements of Regulation AB and other Legal Requirements, in each case to the extent applicable and as specified by Lender.
Appears in 1 contract
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan or (iii) to securitize the Loans Loan or any portion thereof in a single asset securitization or a pooled loan securitization. The transaction referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, 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, Operating Partnership and Manager, (B) provide updated budgets 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 Loans Property (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of 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, the Rating Agencies and their respective counsel, agents and representatives, as collateral security for loans to a non-consolidation, matters of Delaware law relating to limited liability companies, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender Party or and the assignment or issuance Rating Agencies;
(iii) provide updated, as of direct or indirect interests the closing date of the Secondary Market Transaction, representations and warranties made in the Loans Loan Documents and such additional representations and warranties as the Rating Agencies may reasonably require;
(iv) provide such asinformation, for instance, collateralized loan obligations), documents and agreements relating to the Property Documents as Lender may reasonably request in connection with a Secondary Market Transaction; and
(yv) execute such Securitization amendments to the Loan Documents and Borrower or any SPE Component Entity's organizational documents as may be rated reasonably requested by a rating agency. The Loan Parties shall reasonably cooperate with Lender or requested by the Lender Parties Rating Agencies or otherwise to effect the Securitization including, without limitation, by bifurcation of the Loan into two or more components and/or separate notes and/or creating a senior/subordinate note structure (aany of the foregoing, a “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 stated maturity or the amortization of principal set forth in the Note, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and, after the Anticipated Repayment Date, amortization schedules, but which shall have the same weighted average coupon of the original Note.
(c) amending this Agreement If, at the time one or more Disclosure Documents are being prepared for a Securitization, Lender expects that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the other 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 request (i) the selected financial data or, if applicable, net operating income, described in Item 1112(b)(1) of Regulation AB, if Lender expects that the principal amount of the Loan Documentstogether 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 executing at any time during which the Loan (or portion of the Loan included in such additional documentsSecuritization) 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 reasonably requested by applicable, in such Securitization or (ii) the Lenders 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 at any time during which the Loan (or apportion 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; provided that , (iB) any such amendment or additional documentation does not impose material additional costs on later than thirty (30) days after the end of each fiscal quarter of Borrower and (iiC) 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 an Exchange Act Filing is not required. If requested by Lender, and to the extent not prohibited by any applicable lease, other agreement or order, Borrower shall use commercially reasonable efforts to furnish to Lender financial data and/or financial statements for any tenant of any of the Properties delivered to Borrower by such tenants, 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. Notwithstanding anything in this Section 11.1 to the contrary, with respect to any financial data required under this Section 11.1 which relates to the period of time prior to Borrower's acquisition of the Property (i.e., the date hereof), to the extent such financial data is not in Borrower's possession, Borrower shall use commercially reasonable efforts to obtain such financial data from the applicable predecessor owners, or, if Borrower is unable to obtain such information despite using commercially reasonable efforts, then Borrower may provide a good faith estimate of such financial data, provided that Borrower provides Lender with the information upon which Borrower relied in making any such amendment good faith estimate.
(d) All financial data and financial statements provided by Borrower hereunder pursuant to Section 11.1(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 11.1(c) above shall be audited by independent accountants of Borrower (which accountants shall be 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 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 11.1(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 11.1(d).
(e) If requested by Lender, Borrower shall provide Lender, promptly upon request and to the extent available to Borrower, with any other or additional documentation does not materially adversely affect the rightsfinancial statements, or materially increase the obligationsfinancial, of Borrower under the Loan Documents statistical or change operating information, as Lender shall determine to be required pursuant to Regulation AB or affect any amendment, modification or replacement thereto or other legal requirements in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information connection with any Disclosure Document or any Exchange Act Filing or as may shall otherwise be reasonably requested by Lender.
(f) In the Lenders or rating agencies event Lender determines, in connection with the rating of the Loans or the a Securitization, that the financial data and financial statements and (cif applicable) providing a certificate (i) agreeing related accountants' reports and consents required in order to indemnify the Lender Parties, comply with Regulation AB or any party providing credit support amendment, modification or otherwise participating in replacement of Regulation AB or with other legal requirements are other than as provided herein, then notwithstanding the Securitizationprovisions of Section 11.1(c) and (d), including any investors in a securitization entity Lender may request, and Borrower shall promptly provide, to the extent available to the Borrower, such other financial statements and (collectively, the “Securitization Parties”if applicable) related accountants' reports and consents as Lender determines to be necessary or appropriate for such compliance.
(g) Borrower shall be responsible for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers Borrower's out-of-pocket and internal costs and expenses incurred in connection with any Loan Document or arise out Borrower's compliance with this Section 11.1 (including, without limitation, Borrower's attorney's fees and expenses), subject to an aggregate cap on such costs and expenses of or are based upon the omission or alleged omission to state therein a material fact $10,000.00, and provided that Borrower shall not be required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, reimburse Lender for Lender's costs and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending this Section 11.1. Notwithstanding the Securitization Liabilitiesforegoing or anything herein to the contrary, Borrower shall pay for any costs and expenses with respect to items which Borrower is otherwise required to deliver pursuant to the terms of the Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (Cole Credit Property Trust Iv, Inc.)
Securitization. In addition to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge (a) Borrower understands that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) through the pledge certain of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization Provided Information may be rated by a rating agency. The Loan Parties shall reasonably cooperate included in disclosure documents in connection with the Lender Parties to effect the Securitization Securitization, including, without limitation, by a prospectus, prospectus supplement, offering memorandum or private placement memorandum (aeach, a “Disclosure Document”) amending this Agreement and may also be included in filings with the other Loan DocumentsSecurities and Exchange Commission pursuant to the Securities Act or the Exchange Act, or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and executing service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects, provided Lender has provided a copy of such additional documentsDisclosure Document to Borrower for such purpose.
(b) Borrower agrees to provide, as reasonably requested by the Lenders and to cause Guarantor to provide, in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency “term sheets” or presentations relating to the Securitization; provided Properties and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification certificate (A) certifying that Borrower and Guarantor have carefully examined, to the extent requested by Lender and delivered to Borrower for such review, such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan), as applicable, including without limitation, the sections entitled “Special Considerations,” and/or “Risk Factors,” and “Certain Legal Aspects of the Mortgage Loan,” or similar sections, and all sections relating to Borrower, Guarantor, Manager, their Affiliates, the Loan, the Loan Documents and the Properties, and any risks or special considerations relating thereto, and that, to Borrower’s Knowledge, such sections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (B) indemnifying Lender (and for purposes of this Section 13.4, Lender hereunder shall include its officers and directors) and the Affiliate of Lender that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and has filed the registration statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect Person described in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify or (ii), an “Issuer Person”), and each director and officer of any Issuer Person, and each Person or entity who controls any Issuer Person within the Lender Parties, meaning of Section 15 of the Securities Act or any party providing credit support or otherwise participating in Section 20 of the Securitization, including any investors in a securitization entity Exchange Act (collectively, the “Securitization PartiesIssuer Group”), and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any such Person within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) Losses to which Lender, the Lender Parties Issuer Group or such Securitization Parties the Underwriter Group may become subject insofar as the Securitization Liabilities Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections (including any Loan Document Investor or in any writing delivered by Rating Agency “term sheets” or on behalf of any Loan Party presentations relating to the Lender Partiers in connection with any Loan Document Properties and/or the Loan) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan) or necessary in order to make the statements thereinin such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan) or in light of the circumstances under which they were made, not misleading (collectively the “Securities Liabilities”) and (C) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any reasonable legal fees actually incurred or other actual expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender or any member of the Issuer Group or Underwriter Group by or on behalf of Borrower or Guarantor in connection with the preparation of the memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan) or in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower or Guarantor, operating statements, rent rolls, environmental site assessment reports and Property Condition Reports with respect to the Properties. This indemnity agreement will be in addition to any liability which Borrower and Guarantor may otherwise have. Moreover, the indemnification provided for in clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and shall be applicable based on information previously provided by Borrower and Guarantor or their Affiliates if Borrower or Guarantor do not provide the indemnification certificate. Notwithstanding anything to the contrary contained in this Article 13, to the extent that disclosure is based on information provided solely by a Lender affiliate or a third party selected or engaged by Lender, Borrower will be liable for such disclosure only if Borrower (a) knew, or exercising reasonable diligence, should have known, that -127- such disclosure or information contained an untrue statement of material fact or omitted to state a material fact necessary in order to make the statement made, in light of the circumstances under which they were made, not misleading and (b) failed to disclose the same to Lender in writing prior to the pricing of the applicable Securitization.
(c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower agrees to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon an untrue statement or alleged untrue statement of any material fact in the Provided Information or the omission or alleged omission to state in the Provided Information a material fact required to be stated in the Provided Information in order to make the statements in the Provided Information, in light of the circumstances under which they were made not misleading and (ii) reimburse Lender, the Issuer Group or the Underwriter Group for any reasonable legal fees actually incurred or other actual expenses reasonably incurred by Lender, the Issuer Group or the Underwriter Group in connection with defending or investigating the Securities Liabilities. Promptly after receipt by an indemnified party under this Section 13.4 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 13.4, notify the indemnifying party in writing of the commencement thereof, but the omission to so notify the indemnifying party will not relieve the indemnifying party from any liability which the indemnifying party may have to any indemnified party hereunder except to the extent that failure to notify causes the indemnifying party to be materially prejudiced. In the event that any action is brought against any indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party will be entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it (or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. After notice from the indemnifying party to such indemnified party under this Section 13.4 the indemnifying party shall be responsible for any reasonable out-of-pocket legal or other actual out-of-pocket expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. The indemnifying party shall not be liable for the expenses of more than one such separate counsel unless an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another indemnified party.
(d) In order to provide for just and equitable contribution in circumstances in which the indemnity agreements provided for in Section 13.4(c) or Section 13.4(d) is or are for any reason held to be unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which would otherwise be indemnifiable -128- under Section 13.4(c) or Section 13.4(d), the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages or liabilities (or action in respect thereof); provided, however, that no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s, Borrower’s and Guarantor’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation.
(e) Borrower shall, and shall cause Guarantor to, indemnify the Lender and its officers, directors, partners, employees, representatives, agents and Affiliates against any Losses to which Lender and each of its officers, directors, partners, employees, representatives, agents and Affiliates, may become subject in connection with any indemnification to the Rating Agencies in connection with issuing, monitoring or maintaining the Securities insofar as the Losses arise out of or are based upon any untrue statement of any material fact in any information provided by or on behalf of the Borrower to the Rating Agencies (the “Covered Rating Agency Information”) or arise out of or are based upon the omission to state a material fact in the Covered Rating Agency Information required to be stated therein or necessary in order to make the statements in the Covered Rating Agency Information, in light of the circumstances under which they were made, not misleading, .
(f) The liabilities and such indemnity obligations of Borrower and Lender under this Section 13.5 shall survive any transfer by the Lenders or their successors or assigns satisfaction of this Agreement and the satisfaction and discharge of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization LiabilitiesDebt.
Appears in 1 contract
Samples: Loan Agreement (Griffin Capital Essential Asset REIT, Inc.)
Securitization. In addition Subject to any other assignment permitted pursuant Sections 11.7 hereof:
(a) Lender shall have the right (i) to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization. The transactions referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge of the Loans as collateral security for loans market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, including, without limitation and to the extent customary and reasonable as provided in this sentence, to:
(such asi) provide or cause Mortgage Borrower and/or Mezzanine A Borrower to provide (A) updated financial and other information reasonably available to Borrower with respect to the Property, for instancethe Collateral, collateralized loan obligations)the Mezzanine A Collateral, the business operated at the Property, Borrower, Mortgage Borrower, Mezzanine A Borrower, Guarantor, SPE Component Entity, Mortgage SPE Component Entity, Mezzanine A SPE Component Entity and Manager, (B) updated budgets relating to the Property, and (yC) 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 “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and acceptable to the Rating Agencies and (D) revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies;
(ii) to the extent such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the opinions were delivered to Lender Parties to effect the Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; closing of the Loan (provided any such opinion was not waived by Lender with respect to the Loan), provide updated opinions of counsel, which may be relied upon by Lender and its counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Collateral, the Mezzanine A Collateral, the Property, Property Documents, Borrower and Borrower’s Affiliates, Mezzanine A Borrower and Mezzanine A Borrower’s Affiliates, Mortgage Borrower and Mortgage Borrower’s Affiliates which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and shall be satisfactory in form and substance to the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents (which representations and warranties may be updated to reflect any change in facts and circumstances since the Closing Date, provided that (i) any such amendment or additional documentation does change in facts and circumstances is not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of due to a Default by Borrower under the Loan Documents); and
(iv) execute such amendments to the Loan Documents, the Mezzanine A Loan Document, the Mortgage Loan Documents, the Property Documents and Borrower’s, Mezzanine A Borrower’s, Mortgage Borrower’s, any Mortgage SPE Component Entity’s, any Mezzanine A SPE Component Entity’s or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies or rating agencies otherwise to effect any Secondary Market Transaction, including, without limitation, (A) amend and/or supplement the Independent Manager provisions provided herein and therein, in connection each case, in accordance with the rating applicable requirements of the Loans Rating Agencies, (B) bifurcating the Loan into two or more components and/or additional separate notes, re-allocating the SecuritizationLoan among existing components, reducing the number of components of the Loan and/or creating additional senior/subordinate note structure(s), including, without limitation, re-allocating the principal amounts and the LIBOR Spread, Alternate Rate Spread and/or Prime Rate Spread (any of the foregoing, a “Loan Bifurcation”) and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”C) to which modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Lender Parties Loan Documents, by up to ten (10) days; provided, however, that Borrower shall not be required to so modify or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in amend any Loan Document or organizational document if such modification or amendment shall impose a Secondary Market Adverse Change on the Borrower or Guarantor. The term “Secondary Market Adverse Change” means (i) either Borrower’s or Guarantor’s liabilities or obligations under the Loan Documents are increased, or Borrower’s or Guarantor’s rights under the Loan Documents are decreased, in either case in any writing delivered by or on behalf of any Loan Party to material respect (although change in the Lender Partiers weighted average interest rate described in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and clause (ii) agreeing below shall not be deemed to reimburse increase any such liability or decrease any such rights in any material respect), (ii) any change in the Lender Parties weighted average interest rate (whether before or after the time of the proposed Loan Bifurcation, Syndication or New Mezzanine Loan) (other than as a result of (x) payments and recoveries after an Event of Default and/or (y) application of proceeds following a Casualty or Condemnation), (iii) any change to the stated Maturity Date (other Securitization Parties for than as described in clause (C) above) and/or (iv) any legal or other expenses reasonably incurred by such Persons in connection with defending change that would affect the Securitization Liabilitiesamortization of the Loan.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization (including a collateralized debt obligation (CDO) securitization). The transactions referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, each of Borrower and Guarantor shall assist Lender in satisfying the pledge of the Loans as collateral security for loans market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans (such asmarketplace or by the Rating Agencies in connection with any Secondary Market Transactions, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by to:
(ai) amending this provide or cause Mortgage Borrower and/or Mezzanine A Borrower to provide (A) updated financial and other information with respect to the Property (or any portion thereof), the Mezzanine A Collateral (or any portion thereof), the Collateral (or any portion thereof), the business operated at the Property (or any portion thereof), Borrower, Mortgage Borrower, Mezzanine A Borrower, Guarantor, SPE Component Entity (as defined herein, in the Mezzanine A Loan Agreement and in the Mortgage Loan Agreement), any Xxxxxx Intermediate Entity and Manager, (B) updated budgets relating to the Property, (C) 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 (or any portion thereof) (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies and (D) revisions to and other agreements with respect to the Property Documents in form and substance acceptable to Lender and the Rating Agencies;
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property (or any portion thereof), the Collateral (or any portion thereof), the Mezzanine A Collateral (or any portion thereof), the Property Documents, Borrower, Mortgage Borrower, Mezzanine A Borrower and Borrower’s Affiliates, which counsel and opinions shall be satisfactory in form and substance to the Rating Agencies and reasonably satisfactory in form and substance to Lender;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may require; and
(iv) execute such amendments to the Loan Documents, the Mortgage Loan Documents, the Mezzanine A Loan Documents, the Property Documents and executing such additional documentsBorrower’s, Mortgage Borrower’s, Mezzanine A Borrower’s, any Xxxxxx Intermediate Entity’s or any SPE Component Entity’s (as reasonably requested by defined herein, in the Lenders Mezzanine A Loan Agreement and in connection with the Securitization; provided that (iMortgage Loan Agreement) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies or rating agencies otherwise to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) further bifurcating the Loan into two or more additional components, re-allocating the Loan among existing components or existing Notes, reducing the number of components of the Loan and/or creating additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that Borrower and/or Guarantor shall not be required to so modify or amend any Loan Document if such modification or amendment would change any material economic or material non-economic term, including the interest rate or the stated maturity (except as provided in subclause (C) above), except in connection with a Loan Bifurcation which may result in varying interest rates but will have the same initial weighted average coupon of the original Note (except following an Event of Default or in connection with any application of Net Liquidation Proceeds After Debt Service).
(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 collectively, or the Property (or any portion thereof) alone or the Property (or any portion thereof) and Related Properties collectively, will be a Significant Obligor, Borrower and Guarantor shall furnish to Lender, upon request, any information not already in Lender’s possession required under Item 1112(a) of Regulation AB together with (i) the selected financial data 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 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 rating preparation of the Loans or Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (cC) providing not later than seventy-five (75) days after the end of each fiscal year of Borrower; provided, however, that without limiting the obligations of Borrower or Guarantor pursuant to any other provision of this Agreement, Borrower and Guarantor 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 certificate filing pursuant to the Exchange Act in connection with or relating to the Securitization (ian “Exchange Act Filing”) agreeing is not required. If requested by Lender, Borrower and Guarantor shall furnish to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, financial data and/or financial statements (including any investors in a securitization entity (collectively, the “Securitization Parties”such data or statements as may be required under Regulation AB) for any lossestenant of the Property (or any portion thereof) if, claimsin connection with a Securitization, damages Lender expects there to be, with respect to such tenant or liabilities 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.
(d) All financial data and statements provided by Borrower and Guarantor hereunder shall be prepared in accordance with the Approved Accounting Method, and shall meet the requirements of Regulation AB and other applicable legal requirements. All financial statements referred to in this Section 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 “Securitization Liabilities”) to experts” in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the Lender Parties or such Securitization Parties may become subject insofar same time as the Securitization Liabilities arise out related financial statements are required to be provided. All financial data and statements (audited or unaudited) provided by Borrower and Guarantor under this Section shall be accompanied by an Officer’s Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (d).
(e) If requested by Lender, Borrower and Guarantor shall provide Lender, promptly upon request, with any other or are based upon additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation AB or any untrue statement amendment, modification or alleged untrue statement of any material fact contained in any Loan Document replacement thereto or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers other legal requirements in connection with any Loan Disclosure Document or arise out of any Exchange Act Filing or are based upon as shall otherwise be reasonably requested by Lender.
(f) In the omission or alleged omission to state therein event Lender reasonably determines, in connection with a material fact Securitization, that the financial data and financial statements required to be stated therein, or necessary in order to make comply with Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the statements thereinprovisions of this Section, in light of the circumstances under which they were made, not misleadingLender may request, and Borrower and Guarantor shall promptly provide, such indemnity other financial data and financial statements as Lender reasonably determines to be necessary or appropriate for such compliance.
(g) Notwithstanding anything herein to the contrary, Lender shall survive any transfer by pay the Lenders or their successors or assigns reasonable and out-of-pocket fees and expenses of Borrower with respect to Borrower’s compliance with this Section 11.1; provided, that, Borrower shall be responsible for the Loanspayment of (i) Borrower’s legal fees with respect to compliance with the terms of this Section 11.1, and (ii) agreeing all of Borrower’s costs and expenses with respect to reimburse the Lender Parties and the other Securitization Parties for Borrower’s compliance with Regulation AB or any legal amendment, modification or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilitiesreplacement thereto.
Appears in 1 contract
Securitization. In addition to any other assignment permitted pursuant to this SectionBorrower hereby acknowledges that Lender, Loan Parties hereby acknowledge that (x) the Lendersits successors or assigns, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) Loan or portions thereof in one or more transactions through the pledge of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such assecurities, for instance, collateralized loan obligations), and (y) such Securitization which securities may be rated by the Rating Agencies (each, a rating agency"Securitization"; and collectively, the "Securitizations"). The Loan Parties Borrower agrees that it shall reasonably cooperate with Lender and use Borrower's best efforts to facilitate the Lender Parties to effect the consummation of each Securitization including, without limitation, by by: (ai) amending or causing the amendment of this Agreement and the other Loan DocumentsDocuments (provided that such amendments shall not materially increase Borrower's obligations hereunder or thereunder), and executing such additional documents, instruments and agreements including amendments to Borrower's organizational documents and preparing financial statements as reasonably requested by the Lenders Rating Agencies to conform the terms of the Loan to the terms of similar loans underlying completed or pending securitized transactions having or seeking ratings similar to those then being sought in connection with the relevant Securitization; provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) promptly and reasonably providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating preparation of a private placement memorandum, prospectus or a registration statement required to privately place or publicly distribute the securities in a manner which does not conflict with federal or state securities laws; (iii) providing in connection with each of (a) a preliminary and a private placement memorandum or (b) a preliminary and final prospectus, as applicable, an indemnification certificate (x) certifying that Borrower has carefully examined such private placement memorandum, prospectus or registration statement, as applicable, including, without limitation, the sections entitled "Special Considerations," "Description of the Loans Mortgage Loan," "The Underlying Mortgaged Property," "The Manager," "Borrower" and "Certain Legal Aspects of the Mortgage Loan," and such sections (and any other sections requested) insofar as they relate to Borrower, its Affiliates, the Loan or the Securitization, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon Facility do not contain any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required or omit to be stated therein, or state a material fact necessary in order to make the statements thereinmade, in the light of the circumstances under which they were made, not misleading; provided, and however, that Borrower shall not be required to indemnify Lender for any losses relating to untrue statements or omissions which Borrower identified to Lender in writing at the time of Borrower's examination of such indemnity shall survive any transfer by the Lenders memorandum or their successors or assigns of the Loansprospectus, as applicable, and (iiy) agreeing to reimburse indemnifying each Indemnified Party, the Lender Parties Issuer and the other Securitization Parties Advisor for any legal losses, claims, damages, costs, expenses or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilities.liabilities (including, without limitation, all liabilities under all applicable federal and state securities laws) (collectively, the
Appears in 1 contract
Securitization. In addition to any other assignment permitted pursuant to this Section, Loan Parties The Borrower and Guarantors hereby acknowledge that (x) the Lenders, Lenders and their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans Term Loan or the Advances (a “Securitization”) through the pledge of the Loans Term Loan or the Advances as collateral security for loans to a Lender Party the Lenders or their Affiliates or through the sale of the Term Loan or the assignment Advances or the issuance of direct or indirect interests in the Loans (such asTerm Loan or the Advances, for instance, collateralized loan obligations), and (y) such Securitization may which loans to the Lenders or their Affiliates or direct or indirect interests will be rated by a Xxxxx’x, Standard & Poor’s or one or more other rating agencyagencies (the “Rating Agencies”). The Loan Parties Borrower and Guarantors shall reasonably cooperate with the Lender Parties Lenders and their Affiliates to effect the Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; provided that , providedthat (i) any such amendment or additional documentation does not impose material additional costs on the Borrower and Guarantors and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Borrower and Guarantors under the Loan Documents or change or affect in a manner adverse to the Borrower and Guarantors the financial terms of the LoansTerm Loan or the Advances, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans Term Loan, the Advances or the Securitization, and (c) providing in connection with any rating of the Term Loan or the Advances a certificate (i) agreeing to indemnify the Lender PartiesLenders and their Affiliates, any of the Rating Agencies, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity Securitization (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party Borrower and Guarantors to the Lender Partiers Lenders in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, Term Loan or the Advances and (ii) agreeing to reimburse the Lender Parties Lenders and the other Securitization Parties their Affiliates for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilities.
Appears in 1 contract
Samples: Loan and Security Agreement (Northland Cranberries Inc /Wi/)
Securitization. In addition to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge (a) Borrower and Borrower Principal understand that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) through the pledge certain of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization Provided Information may be rated by a rating agency. The Loan Parties shall reasonably cooperate included in disclosure documents in connection with the Lender Parties to effect the Securitization Securitization, including, without limitation, by a prospectus, prospectus supplement, offering memorandum or private placement memorandum (aeach, a “Disclosure Document”) amending this Agreement and may also be included in filings with the other Loan DocumentsSecurities and Exchange Commission pursuant to the Securities Act or the Exchange Act, or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and executing such additional documentsservice providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, as reasonably requested Borrower and Borrower Principal will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Lenders Disclosure Document accurate and complete in all material respects.
(b) Borrower and Borrower Principal agree to provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency “term sheets” or presentations relating to the Securitization; provided Property and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification certificate (A) certifying that Borrower and Borrower Principal have carefully examined such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan), as applicable, including without limitation, the sections entitled “Special Considerations,” and/or “Risk Factors,” and “Certain Legal Aspects of the Mortgage Loan,” or similar sections, and all sections relating to Borrower, Borrower Principal, Manager, their Affiliates, the Loan, the Loan Documents and the Property, and any risks or special considerations relating thereto, and that, to the best of Borrower’s knowledge, such sections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (B) indemnifying Lender (and for purposes of this Section 13.5, Lender hereunder shall include its officers and directors) and the Affiliate of Lender that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and has filed the registration statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect Person described in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify or (ii), an “Issuer Person”), and each director and officer of any Issuer Person, and each Person or entity who controls any Issuer Person within the Lender Parties, meaning of Section 15 of the Securities Act or any party providing credit support or otherwise participating in Section 20 of the Securitization, including any investors in a securitization entity Exchange Act (collectively, the “Securitization PartiesIssuer Group”), and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any such Person within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) Losses to which Lender, the Lender Parties Issuer Group or such Securitization Parties the Underwriter Group may become subject insofar as the Securitization Liabilities Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections (including any Loan Document Investor or in any writing delivered by Rating Agency “term sheets” or on behalf of any Loan Party presentations relating to the Lender Partiers in connection with any Loan Document Property and/or the Loan) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan) or necessary in order to make the statements therein, in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan) or in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by misleading (collectively the Lenders or their successors or assigns of the Loans, “Securities Liabilities”) and (iiC) agreeing to reimburse Lender, the Lender Parties Issuer Group and the other Securitization Parties Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such Persons case under clauses (B) or (C) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender or any member of the Issuer Group or Underwriter Group by or on behalf of Borrower or Borrower Principal in connection with the preparation of the memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan) or in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower or Borrower Principal, operating statements, Rent Rolls, environmental site assessment reports and Property condition reports with respect to the Property. This indemnity agreement will be in addition to any liability which Borrower and Borrower Principal may otherwise have. Moreover, the indemnification provided for in clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and shall be applicable based on information previously provided by Borrower and Borrower Principal or their Affiliates if Borrower or Borrower Principal do not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower and Borrower Principal agree to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon the omission or alleged omission to state in the Provided Information a material fact required to be stated in the Provided Information in order to make the statements in the Provided Information, in light of the circumstances under which they were made not misleading and (ii) reimburse Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, the Issuer Group or the Underwriter Group in connection with defending or investigating the Securitization LiabilitiesSecurities Liabilities arising from the errors and/or omissions referenced in subsection (i) immediately above.
(d) Promptly after receipt by an indemnified party under this Section 13.5 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 13.5, notify the indemnifying party in writing of the commencement thereof, but the omission to so notify the indemnifying party will not relieve the indemnifying party from any liability which the indemnifying party may have to any indemnified party hereunder except to the extent that failure to notify causes prejudice to the indemnifying party. In the event that any action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it (or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. After notice from the indemnifying party to such indemnified party under this Section 13.5 the indemnifying party shall be responsible for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. The indemnifying party shall not be liable for the expenses of more than one such separate counsel unless an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another indemnified party.
(e) In order to provide for just and equitable contribution in circumstances in which the indemnity agreements provided for in Section 13.5(c) or Section 13.5(d) is or are for any reason held to be unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which would otherwise be indemnifiable under Section 13.5(c) or Section 13.5(d), the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages or liabilities (or action in respect thereof); provided, however, that no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s, Borrower’s and Borrower Principal’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower and Borrower Principal hereby agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation.
(f) The liabilities and obligations of Borrower, Borrower Principal and Lender under this Section 13.5 shall survive the satisfaction of this Agreement and the satisfaction and discharge of the Debt.
Appears in 1 contract
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan or (iii) to securitize the Loans Loan or any portion thereof in a single asset securitization or a pooled loan securitization. The transaction referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, 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, Sponsor and Manager, (B) provide updated budgets 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 Loans Property (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as collateral security for loans to a non-consolidation, fraudulent conveyance, matters of Delaware or Maryland (as applicable) and federal bankruptcy law relating to limited liability companies and true sale or any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property and Borrower and Borrower’s Affiliates, which counsel and opinions shall be satisfactory in form and substance to Lender Party or and the assignment or issuance Rating Agencies;
(iii) provide updated, as of direct or indirect interests the closing date of the Secondary Market Transaction, representations and warranties made in the Loans Loan Documents and such additional representations and warranties as the Rating Agencies may require; and
(iv) execute such as, for instance, collateralized loan obligations), amendments to the Loan Documents and (y) such Securitization Borrower or any SPE Component Entity’s organizational documents as may be rated reasonably requested by a rating agency. The Loan Parties shall reasonably cooperate with Lender or requested by the Lender Parties Rating Agencies or otherwise to effect the Securitization including, without limitation, by bifurcation of the Loan into two or more components and/or separate notes and/or creating a senior/subordinate note structure (a) amending this Agreement and any of the other foregoing, a “Loan DocumentsBifurcation”); provided, and executing however, that Borrower shall not be required to modify or amend any Loan Document if such additional documentsmodification or amendment would change the interest rate, as reasonably requested by the Lenders stated maturity or the amortization of principal set forth in the Note, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the Securitization; provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms same initial weighted average coupon of the Loans, original Note.
(bc) providing such information as may be reasonably requested All costs and expenses (including attorneys’ fees and expenses) incurred by the Lenders or rating agencies Lender in connection with the rating of the Loans or the Securitization, Borrower’s complying with requests made under this Section 11.1 shall be paid by Lender. All costs and expenses (cincluding attorneys’ fees and expenses) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered incurred by or on behalf of any Loan Party to the Lender Partiers Borrower in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to Borrower’s complying with requests made under this Section 11.1 shall be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer paid by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization LiabilitiesBorrower.
Appears in 1 contract
Securitization. In addition to (a) Borrower acknowledges and agrees that Lender may, at its sole cost and expense other than as set forth in Section 11.1(g) hereof, (i) sell or otherwise transfer the Loan as a whole loan or sell or otherwise transfer or syndicate all or any other assignment permitted pursuant to this Sectionportion of the Loan and the Loan Documents, (ii) sell participation interests in the Loan Parties hereby acknowledge that or (xiii) consummate one or more private or public securitizations of rated or unrated single-class or multi-class securities (the Lenders, their Affiliates and Approved Funds (“Lender PartiesSecurities”) may sell secured by or securitize evidencing ownership interests in all or any portion of the Loans Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (the transactions referred to in clauses (i), (ii), and (iii) above are each herein referred to collectively as “Secondary Market Transactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”).
(b) through the pledge of the Loans as collateral security for loans If requested by Xxxxxx, Borrower shall assist Lender in satisfying customary market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans (such asmarketplace or by the Rating Agencies in connection with any Secondary Market Transactions, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by to:
(ai) amending this Agreement provide (A) updated financial and other information with respect to the Property, the business operated at the Property, Borrower, each Mezzanine Borrower, Guarantor, SPE Component Entity, Mezzanine SPE Component Entity, Manager, the Management Agreements, the Property Documents, the PILOT Leases, the PILOT Documents and any Tenant, (B) updated budgets relating to the Property, (C) 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 “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies and (D) to the extent that the agreement or consent of any relevant third-parties can reasonably be obtained, as applicable, revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies; provided that Borrower shall not be required to provide additional information regarding the identity of any indirect investors in Borrower (or their respective Affiliates);
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Xxxxxx, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Property Documents, Borrower and Borrower’s Affiliates, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and satisfactory in form and substance to the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may require; and
(iv) execute such amendments to the Loan Documents, Mezzanine Loan Documents, the Property Documents, and executing such additional documentsXxxxxxxx’s, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) each Mezzanine Borrower’s, any such amendment SPE Component Entity’s or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information Mezzanine SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies or rating agencies otherwise to effect any Secondary Market Transaction, including, without limitation, (A) amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan into (I) one or more participations or (II) one or more component and/or additional separate notes and/or creating additional senior/subordinate note structure(s) and reallocating the principal amount of the Loan and the Spread among such components and/or notes evidencing the Loan and/or the Mezzanine Loans, including, without limitation, reallocation of the amount of Note A and Note B and/or adjustment the interest rates thereon (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that (I) the outstanding principal amount of such participations, loans, components and/or notes shall equal the outstanding principal amount of the Loan immediately prior to the creation thereof and (II) Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would require amortization of the Loan, change the weighted average Spread or the stated maturity (except as provided in subclause (C) above) (it being agreed that that the weighted average Spread may subsequently change as a result of (x) after a rated Securitization, any voluntary prepayment of the Loan or the Mezzanine Loans and (y) any applications to principal during the continuance of an Event of Default or a Mezzanine Loan Event of Default; provided, further, that (i) the Stated Maturity Date shall not be affected and the time periods during which Borrower is permitted to perform its obligations under the Loan Documents shall not be decreased; (ii) no such bifurcation or reallocation shall require any amortization of the Loan, (iii) there shall be no modification of the Loan Documents except to reflect the creation of such loans, participations, components or notes and the loan documents relating to such loans, components and/or notes shall be in substantially the form of the Loan Documents and (iv) neither Borrower nor Guarantor shall be required to enter into any amendment which increases Borrower’s or Guarantor’s liability under the Loan Documents in any material respect or decreases Borrower’s or Guarantor’s rights under the Loan Documents in any material respect. For avoidance of doubt, at all times the weighted average Interest Rate of all components of the Loan shall equal the weighted average Interest Rate at Closing; provided, however, that the weighted average Interest Rate may subsequently change as a result of (x) after a rated Securitization, any prepayment of the Loan and (y) any applications to principal during the continuance of an Event of Default.
(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 collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request (without duplication and to the extent not previously provided) (i) the selected financial data 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 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 rating preparation of the Loans or Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (cC) providing 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 certificate filing pursuant to the Exchange Act in connection with or relating to the Securitization (ian “Exchange Act Filing”) agreeing is not required. If requested by Xxxxxx, Borrower shall furnish to indemnify Lender financial data and/or financial statements for any tenant of the Property (in Borrower’s possession or control and permitted to be disclosed) if, in connection with a Securitization, Lender Partiesexpects 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.
(d) All financial data and statements provided by Borrower hereunder 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 this Section shall be audited by Deloitte, Ernst & Young, RSM McGladrey, Xxxxx Xxxxxx Xxxxx, PwC or other independent certified public accountant reasonably approved by 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 statements (audited or unaudited) provided by Borrower under this Section shall be accompanied by an Officer’s Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (d).
(e) If requested by Xxxxxx, Borrower shall provide Lender, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall determine to be required pursuant to Regulation AB or any party providing credit support amendment, modification or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages replacement thereto or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers other legal requirements in connection with any Loan Disclosure Document or arise out of any Exchange Act Filing or are based upon as shall otherwise be reasonably requested by Lender, in each case, to the omission or alleged omission extent reasonably available to state therein Borrower.
(f) In the event Lender determines, in connection with a material fact Securitization, that the financial data and financial statements required to be stated therein, or necessary in order to make 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 this Section, Lender may request, and Borrower shall promptly provide, such other financial data and financial statements thereinas Lender determines to be necessary or appropriate for such compliance, in light of each case, to the circumstances under which they were made, not misleading, extent reasonably available to Borrower.
(g) All reasonable out-of-pocket third-party costs and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons Xxxxxxxx and Guarantor in connection with defending Borrower’s compliance with requests made under this Article 11 (including any documentary stamp, intangible or other mortgage taxes) and any fees and expenses of the Rating Agencies incurred in connection with a syndication and/or Securitization Liabilitiesof the Loan shall be paid by Borrower, including any AUP costs incurred before or after the Closing Date. In addition, Borrower and Guarantor shall be responsible for the payment of all of Borrower’s and Guarantor’s respective attorneys’ fees and expenses with respect to requests made pursuant to Section 11.1, Section 11.2, and Section 11.6.
Appears in 1 contract
Samples: Loan Agreement (Industrial Logistics Properties Trust)
Securitization. In addition to (a) Borrower acknowledges and agrees that Lender may (i) sell or otherwise transfer the Loan as a whole loan or sell or otherwise transfer or syndicate all or any other assignment permitted pursuant to this Sectionportion of the Loan and the Loan Documents, (ii) sell participation interests in the Loan Parties hereby acknowledge that or (xiii) consummate one or more private or public securitizations of rated or unrated single-class or multi-class securities (the Lenders, their Affiliates and Approved Funds (“Lender PartiesSecurities”) may sell secured by or securitize evidencing ownership interests in all or any portion of the Loans Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (the transactions referred to in clauses (i), (ii), and (iii) above are each herein referred to collectively as “Secondary Market Transactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”).
(b) through the pledge of the Loans as collateral security for loans If requested by Lxxxxx, Borrower shall assist Lender in satisfying customary market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans (such asmarketplace or by the Rating Agencies in connection with any Secondary Market Transactions, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by to:
(ai) amending this Agreement provide (A) updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Mezzanine Borrower, Guarantor, SPE Component Entity, Mezzanine SPE Component Entity, Manager, the Management Agreements, the Property Documents, the Ground Leases, the PILOT Leases, the PILOT Documents and any Tenant, (B) updated budgets relating to the Property, (C) 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 “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies and (D) to the extent that the agreement or consent of any relevant third-parties can reasonably be obtained, as applicable, revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies; provided that Borrower shall not be required to provide additional information regarding the identity of any indirect investors in Borrower (or their respective Affiliates);
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Lxxxxx, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Property Documents, Borrower and Borrower’s Affiliates, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and satisfactory in form and substance to the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may require; and
(iv) execute such amendments to the Loan Documents, the Mezzanine Loan Documents, the Property Documents, and executing such additional documentsBxxxxxxx’s, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) Mezzanine Borrower’s, any such amendment SPE Component Entity’s or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information Mezzanine SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies or rating agencies otherwise to effect any Secondary Market Transaction, including, without limitation, (A) amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan into (I) one or more participations or (II) one or more component and/or additional separate notes and/or creating additional senior/subordinate note structure(s) and reallocating the principal amount of the Loan and the Spread among such components and/or notes evidencing the Loan and/or the Mezzanine Loan and/or adjustment of the interest rates thereon (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that (I) the outstanding principal amount of such participations, loans, components and/or notes shall equal the outstanding principal amount of the Loan immediately prior to the creation thereof and (II) Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would require amortization of the Loan, change the weighted average Spread or the stated maturity (except as provided in subclause (C) above) (it being agreed that that the weighted average Spread may subsequently change as a result of (x) after a rated Securitization, any voluntary prepayment of the Loan in excess of the Free Prepayment Amount or the Mezzanine Loan and (y) any applications to principal during the continuance of an Event of Default or a Mezzanine Loan Event of Default; provided, further, that (i) the Stated Maturity Date shall not be affected and the time periods during which Borrower is permitted to perform its obligations under the Loan Documents shall not be decreased; (ii) no such bifurcation or reallocation shall require any amortization of the Loan; (iii) there shall be no modification of the Loan Documents except to reflect the creation of such loans, participations, components or notes and the loan documents relating to such loans, components and/or notes shall be in substantially the form of the Loan Documents and (iv) neither Borrower nor Guarantor shall be required to enter into any amendment which increases Borrower’s or Guarantor’s liability under the Loan Documents in any material respect or decreases Borrower’s or Guarantor’s rights under the Loan Documents in any material respect. For avoidance of doubt, at all times the weighted average Interest Rate of all components of the Loan shall equal the weighted average Interest Rate at Closing; provided, however, that the weighted average Interest Rate may subsequently change as a result of (x) after a rated Securitization, any prepayment of the Loan in excess of the Free Prepayment Amount and (y) any applications to principal during the continuance of an Event of Default.
(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 collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request (without duplication and to the extent not previously provided) (i) the selected financial data 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 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 rating preparation of the Loans or Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (cC) providing 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 certificate filing pursuant to the Exchange Act in connection with or relating to the Securitization (ian “Exchange Act Filing”) agreeing is not required. If requested by Lxxxxx, Borrower shall furnish to indemnify Lender financial data and/or financial statements for any tenant of the Property (in Borrower’s possession or control and permitted to be disclosed) if, in connection with a Securitization, Lender Partiesexpects 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.
(d) All financial data and statements provided by Borrower hereunder 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 this Section shall be audited by Deloitte, Ernst & Young, RSM McGladrey, Bxxxx Nxxxxx Nxxxx, PwC or other independent certified public accountant reasonably approved by 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 statements (audited or unaudited) provided by Borrower under this Section shall be accompanied by an Officer’s Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (d).
(e) If requested by Lxxxxx, Borrower shall provide Lender, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall determine to be required pursuant to Regulation AB or any party providing credit support amendment, modification or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages replacement thereto or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers other legal requirements in connection with any Loan Disclosure Document or arise out of any Exchange Act Filing or are based upon as shall otherwise be reasonably requested by Lender, in each case, to the omission or alleged omission extent reasonably available to state therein Borrower.
(f) In the event Lender determines, in connection with a material fact Securitization, that the financial data and financial statements required to be stated therein, or necessary in order to make 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 this Section, Lender may request, and Borrower shall promptly provide, such other financial data and financial statements thereinas Lender determines to be necessary or appropriate for such compliance, in light of each case, to the circumstances under which they were made, not misleading, extent reasonably available to Borrower.
(g) All reasonable out-of-pocket third-party costs and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons Bxxxxxxx and Guarantor in connection with defending Borrower’s compliance with requests made under this Article 11 (including any documentary stamp, intangible or other mortgage taxes) and any fees and expenses of the Rating Agencies incurred in connection with a syndication and/or Securitization Liabilitiesof the Loan shall be paid by Borrower, including any AUP costs incurred before or after the Closing Date. In addition, Borrower and Guarantor shall be responsible for the payment of all of Borrower’s and Guarantor’s respective attorneys’ fees and expenses with respect to requests made pursuant to Section 11.1, Section 11.2, and Section 11.6.
Appears in 1 contract
Samples: Loan Agreement (Industrial Logistics Properties Trust)
Securitization. In addition Subject to receiving written consent from Agent and Holdings, any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) or all of the Lenders, Lenders and their Affiliates and Approved Funds (“Lender Parties”) may sell sell, pledge or otherwise securitize all or any part of the Loans (each, a “Securitization”) ), through the pledge of the Loans as collateral security for loans to a any such Lender Party or its Affiliates, or through the direct sale of Loans or the assignment or issuance of direct or indirect interests in the Loans (such asLoans, for instance, collateralized loan obligations), and (y) such Securitization may which loans to any Lender or its Affiliates or direct or indirect interests will be rated by a Xxxxx’x, Standard & Poor’s or one or more other rating agencyagencies (the “Rating Agencies”). The Loan Parties shall reasonably agree to cooperate with each of the Lender Parties Lenders and their Affiliates to effect the Securitization each such Securitization, including, without limitation, by by: (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as shall be reasonably requested by the Lenders any Lender in connection with the any such Securitization; provided that provided, that, (i) any such amendment or additional documentation does not impose material additional costs on Borrower shall be undertaken by Loan Parties at such Lender’s expense, and (ii) any such amendment or additional documentation does shall not materially and adversely affect the rights, or materially increase the obligations, of Borrower Loan Parties under the Loan Documents Documents, or change or affect in a manner adverse to Borrower Loan Parties the financial terms of the Loans, ; (b) providing such financial and other information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the any such Securitization, ; and (c) providing in connection with any rating of the Loans a certificate (i) agreeing to indemnify the Lender PartiesLenders and their Affiliates, or any the Rating Agencies and each party providing credit support or otherwise participating in the Securitizationsuch Securitization (each, including any investors in a securitization entity (collectively, the “Securitization PartiesParty”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) and all Liabilities to which the Lender Parties or any such Securitization Parties Party may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Agent or any Lender Partiers in connection with any Loan Document Document, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders any Lender or their successors or assigns of the any Loans, and (ii) agreeing to reimburse the each Lender Parties and the other Securitization Parties its Affiliates for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilities.
Appears in 1 contract
Samples: Loan Agreement (M/a-Com Technology Solutions Holdings, Inc.)
Securitization. In addition to (a) Borrower acknowledges and agrees that Administrative Agent and Lender may, at its sole cost and expense other than as set forth in Section 11.1(g) hereof, (i) sell or otherwise transfer the Loan as a whole loan or sell or otherwise transfer or syndicate all or any other assignment permitted pursuant to this Sectionportion of the Loan and the Loan Documents, Loan Parties hereby acknowledge that (xii) sell participation interests in the LendersLoan, their Affiliates and Approved Funds or (iii) consummate one or more private or public securitizations of rated or unrated single-class or multi-class securities (the “Lender PartiesSecurities”) may sell secured by or securitize evidencing ownership interests in all or any portion of the Loans Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (the transactions referred to in clauses (i), (ii), and (iii) above are each herein referred to collectively as “Secondary Market Transactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”).
(b) through the pledge of the Loans If requested by Administrative Agent or Lender, Borrower shall assist Administrative Agent and Lender, as collateral security for loans applicable, in satisfying customary market standards to a Lender Party which Administrative Agent and Lender, as applicable, customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans (such asmarketplace or by the Rating Agencies in connection with any Secondary Market Transactions, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by to:
(ai) amending this Agreement provide (A) updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Mezzanine Borrower, Guarantor, SPE Component Entity, Mezzanine SPE Component Entity, Manager, the Management Agreements, the Property Documents, the Ground Leases, the PILOT Leases, the PILOT Documents and any Tenant, (B) updated budgets relating to the Property, (C) 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 “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel acceptable to Administrative Agent and the Rating Agencies and (D) to the extent that the agreement or consent of any relevant third-parties can reasonably be obtained, as applicable, revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Administrative Agent and acceptable to the Rating Agencies; provided that Borrower shall not be required to provide additional information regarding the identity of any indirect investors in Borrower (or their respective Affiliates);
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Administrative Agent, Lender, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Property Documents, Borrower and Borrower’s Affiliates, which counsel and opinions shall be reasonably satisfactory in form and substance to Administrative Agent and satisfactory in form and substance to the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may require; and
(iv) execute such amendments to the Loan Documents, Mezzanine Loan Documents, the Property Documents, and executing such additional documentsBxxxxxxx’s, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) Mezzanine Borrower’s, any such amendment SPE Component Entity’s or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information Mezzanine SPE Component Entity’s organizational documents as may be reasonably requested by Administrative Agent or Lender or requested by the Lenders Rating Agencies or rating agencies otherwise to effect any Secondary Market Transaction, including, without limitation, (A) amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan into (I) one or more participations or (II) one or more component and/or additional separate notes and/or creating additional senior/subordinate note structure(s) and reallocating the principal amount of the Loan and the Spread among such components and/or notes evidencing the Loan (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that (I) the outstanding principal amount of such participations, loans, components and/or notes shall equal the outstanding principal amount of the Loan immediately prior to the creation thereof and (II) Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would require amortization of the Loan, change the weighted average Spread or the stated maturity (except as provided in subclause (C) above) (it being agreed that that the weighted average Spread may subsequently change as a result of (x) after a rated Securitization, any voluntary prepayment of the Loan and (y) any applications to principal during the continuance of an Event of Default; provided, further, that (i) the Stated Maturity Date shall not be affected and the time periods during which Borrower is permitted to perform its obligations under the Loan Documents shall not be decreased; (ii) no such bifurcation or reallocation shall require any amortization of the Loan, (iii) there shall be no modification of the Loan Documents except to reflect the creation of such loans, participations, components or notes and the loan documents relating to such loans, components and/or notes shall be in substantially the form of the Loan Documents and (iv) neither Borrower nor Guarantor shall be required to enter into any amendment which increases Borrower’s or Guarantor’s liability under the Loan Documents in any material respect or decreases Borrower’s or Guarantor’s rights under the Loan Documents in any material respect. For avoidance of doubt, at all times the weighted average Interest Rate of all components of the Loan shall equal the weighted average Interest Rate at Closing; provided, however, that the weighted average Interest Rate may subsequently change as a result of (x) after a rated Securitization, any voluntary prepayment of the Loan and (y) any applications to principal during the continuance of an Event of Default.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Administrative Agent expects that Borrower 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 Administrative Agent upon request (without duplication and to the extent not previously provided) (i) the selected financial data or, if applicable, net operating income, required under Item 1112(b)(1) of Regulation AB, if Administrative Agent 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 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 Administrative Agent 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 Administrative Agent (A) within ten (10) Business Days after notice from Administrative Agent in connection with the rating preparation of the Loans or Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (cC) providing 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 certificate filing pursuant to the Exchange Act in connection with or relating to the Securitization (ian “Exchange Act Filing”) agreeing is not required. If requested by Administrative Agent, Bxxxxxxx shall furnish to indemnify Administrative Agent financial data and/or financial statements for any tenant of the Lender PartiesProperty (in Borrower’s possession or control and permitted to be disclosed) if, in connection with a Securitization, Administrative Agent 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.
(d) All financial data and statements provided by Borrower hereunder 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 this Section shall be audited by Deloitte, Ernst & Yxxxx, RSM McGladrey, Bxxxx Nxxxxx Nxxxx, PwC or other independent certified public accountant reasonably approved by Administrative Agent 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 Administrative 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, all of which shall be provided at the same time as the related financial statements are required to be provided. All financial data and statements (audited or unaudited) provided by Borrower under this Section shall be accompanied by an Officer’s Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (d).
(e) If requested by Administrative Agent or Lender, Borrower shall provide Administrative Agent, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Administrative Agent shall determine to be required pursuant to Regulation AB or any party providing credit support amendment, modification or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages replacement thereto or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers other legal requirements in connection with any Loan Disclosure Document or arise out of any Exchange Act Filing or are based upon as shall otherwise be reasonably requested by Administrative Agent, in each case, to the omission or alleged omission extent reasonably available to state therein Borrower.
(f) In the event Administrative Agent determines, in connection with a material fact Securitization, that the financial data and financial statements required to be stated therein, or necessary in order to make 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 this Section, Administrative Agent may request, and Borrower shall promptly provide, such other financial data and financial statements thereinas Administrative Agent determines to be necessary or appropriate for such compliance, in light of each case, to the circumstances under which they were made, not misleading, extent reasonably available to Borrower.
(g) All reasonable out-of-pocket third-party costs and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons Bxxxxxxx and Guarantor in connection with defending Borrower’s compliance with requests made under this Article 11 (including any documentary stamp, intangible or other mortgage taxes) and any fees and expenses of the Rating Agencies incurred in connection with a syndication and/or Securitization Liabilitiesof the Loan shall be paid by Borrower, including any AUP costs incurred before or after the Closing Date. In addition, Borrower and Guarantor shall be responsible for the payment of all of Borrower’s and Guarantor’s respective attorneys’ fees and expenses with respect to requests made pursuant to Section 11.1, Section 11.2, and Section 11.6.
Appears in 1 contract
Samples: Loan Agreement (Industrial Logistics Properties Trust)
Securitization. In addition to any other assignment permitted pursuant to this SectionBorrower hereby acknowledges that Lender, Loan Parties hereby acknowledge that (x) the Lendersits successors or assigns, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) Loan or portions thereof in one or more transactions through the pledge of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such assecurities, for instance, collateralized loan obligations), and (y) such Securitization which may be rated by the Rating Agencies (each, a rating agency"Securitization"; collectively, the "Securitizations"). The Loan Parties Borrower agrees that at its sole cost and expense, it shall reasonably cooperate with Lender and use its best efforts to facilitate the Lender Parties to effect the consummation of each Securitization including, without limitationbut not limited to, by (a) amending or causing the amendment of this Agreement and the other Loan Documents, and executing such additional documents, documents including amendments to Borrower's organizational documents and preparing financial statements as reasonably requested by the Lenders Rating Agencies to conform the terms of the Loan to the terms of similar loans underlying completed or pending securitized transactions having or seeking ratings the same as those then being sought in connection with the relevant Securitization; provided , provided, however, that (i) any such amendment or additional documentation does documents shall not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect change the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial economic terms of the Loans, Loan; (b) promptly and reasonably providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating preparation of a private placement memorandum or a registration statement required to privately place or publicly distribute the Loans securities in a manner which does not conflict with federal or the Securitization, and state securities laws; (c) providing a certificate in connection with each of (i) agreeing a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus, as applicable, an indemnification certificate (x) certifying that Borrower has carefully examined such memorandum or prospectus, as applicable, including, without limitation, the sections entitled "Special Considerations", "Description of the Mortgage Loan and "The Underlying Mortgaged Property", "The Manager", "Borrower" and "Certain Legal Aspects of the Mortgage Loan", and such sections (and any other sections reasonably requested) insofar as they relate to Borrower, its Affiliates, the Loan or the Facility do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, provided, however, that Borrower shall not be required to indemnify Lender for any losses relating to untrue statements or omissions which Borrower identified to Lender in writing at the time of Borrower's examination of such memorandum or prospectus as applicable, and (y) indemnifying Lender Parties(and its officers, directors, partners, employees, affiliates and agents and each other person, if any, controlling Lender or any of its affiliates within the meaning of either Section 15 of the Securities Act of 1933, as amended, or any party providing credit support or otherwise participating in Section 20 of the SecuritizationSecurities Exchange Act of 1934, including any investors in a securitization entity (collectivelyas amended), the “Securitization Parties”) Issuer and the Advisor for any losses, claims, damages damages, expenses 39 44 or liabilities (including, without limitation, all liabilities under all applicable federal and state securities laws) (collectively, the “Securitization "Liabilities”") to which the Lender Parties or such Securitization Parties any of them may become subject (i) insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact relating to Borrower, its Affiliates, the Loan, the Facility, the Manager or any aspect of the subject financing or the parties directly involved therein contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document such sections or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated thereinin such sections or necessary in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading or (ii) as a result of any untrue statement of material fact in any of the financial statements of Borrower incorporated into any placement memorandum, prospectus, registration statement or other document connected with the issuance of securities or the failure to include in such financial statements or in any placement memorandum, prospectus, registration statement or other document connected with the issuance of securities any material fact relating to Borrower, its Affiliates, the Facility, the Loan, the Manager and any aspect of the subject financing necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, ; provided that Borrower shall have had an opportunity to review and comment upon the relevant portions of such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, documents; and (iiz) agreeing to reimburse Lender, the Lender Parties Issuer and the other Securitization Parties Advisor for any legal or other expenses reasonably incurred by such Persons Lender, the Issuer and the Advisor in connection with investigating or defending the Liabilities; (d) causing to be rendered such customary opinion letters as shall be reasonably requested by the Rating Agencies for other securitizations having or seeking ratings comparable to that then being sought for the relevant Securitization; (e) making such representations, warranties and covenants, as may be reasonably requested by the Rating Agencies and comparable to those required in other securitized transactions having or seeking the same rating as is then being sought for the Securitization; (f) providing such information regarding the Collateral as may be reasonably requested by the Rating Agencies or otherwise required in connection with the formation of a REMIC and (g) providing any other information and materials required in the Securitization Liabilitiesprocess. Borrower acknowledges and agrees that the Lender may, at any time on or after the Closing Date, assign its duties, rights or obligations hereunder or under any Loan Document in whole, or in part, to a servicer and/or a trustee in Lender's discretion. Nothing herein shall in any way limit Lender's right to sell all or a portion of the Loan in a transaction which is not a Securitization.
Appears in 1 contract
Securitization. In addition Subject to Countrywide receiving at least fifteen (15) days prior written notice, Countrywide and the Purchasers agree that with respect to some or all of the Mortgage Loans, the related Purchaser may effect no more than three (3) Whole Loan Transfers, and/or Pass-Through Transfers with respect to any other assignment permitted pursuant particular Mortgage Loan Package. With respect to this Sectioneach Whole Loan Transfer or Pass-Through Transfer entered into by the related Purchaser, Loan Parties hereby acknowledge that Countrywide agrees to:
(xi) restate all representations and warranties made herein with respect to the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Mortgage Loans (a “Securitization”) through the pledge as of the Loans related Closing Date and with respect to Countrywide itself as collateral security for loans to a Lender Party or of the assignment or issuance of direct or indirect interests in the Loans Reconstitution Date;
(such as, for instance, collateralized loan obligations), and (yii) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties related Purchaser with respect to effect all reasonable requests which have been made by such Purchaser by prior written notice, including providing such Purchaser and any supervisory agents or examiners access to any documentation regarding the Securitization includingMortgage Loans required to be disclosed pursuant to any applicable regulations; provided however, without limitationany “out-of-pocket” costs or expenses in connection with the foregoing shall be solely borne by the related Purchaser;
(iii) reasonably negotiate in good faith customary pooling and servicing agreements or other agreements (the “Reconstitution Agreement”) provided that Countrywide is given an opportunity to review and reasonably negotiate in good faith the content of such documents and such documents do not impose any greater liability or less benefit to Countrywide than is provided in this Agreement; provided, by (a) amending however, if the related Purchaser transfers Mortgage Loans into a Pass-Through Transfer in accordance with this Agreement, Countrywide hereby agrees to service the Mortgage Loans in accordance with this Agreement and the other Loan Documentsfollowing provisions:
(a) if the related Purchaser transfers Mortgage Loans into a Pass-Through Transfer in accordance with this Agreement and if periodic reports under the Securities Exchange Act of 1934 are required with respect to such Pass-Through Transfer, Countrywide shall cause the servicing officer in charge of servicing of Countrywide to execute and executing such additional documents, deliver a certification (the “Backup Certification”) in the form attached hereto as reasonably requested by the Lenders Exhibit E in connection with such Pass-Through Transfer, not later than March 15 of each calendar year following the Securitizationfirst fiscal year of the trust related to such Pass-Through Transfer; provided that such Backup Certification shall no longer be required if periodic reports under the Securities Exchange Act of 1934 are no longer required with respect to such Pass-Through Transfer;
(b) if a REMIC election has been made and Countrywide has received written notification or otherwise has actual and verified knowledge thereof with respect to the Pass-Through Transfer under which the Mortgage Loans and REO Properties are held, Countrywide shall not take any action, cause the REMIC to take any action or fail to take (or fail to cause to be taken) any action that, under the REMIC Provisions, if taken or not taken, as the case may be, could (i) any such amendment endanger the status of the REMIC as a REMIC or additional documentation does not impose material additional costs on Borrower and (ii) result in the imposition of a tax upon the REMIC (including but not limited to the tax on “prohibited transactions” as defined in Section 860(a)(2) of the Code and the tax on “contributions” to a REMIC set forth in Section 860(d) of the Code) unless Countrywide has received an Opinion of Counsel (at the expense of the party seeking to take such an action) to the effect that the contemplated action will not endanger such REMIC status or result in the imposition of any such amendment tax;
(c) if the related Purchaser transfers Mortgage Loans into a publicly traded Pass-Through Transfer in accordance with this Agreement and if periodic reports under the Securities Exchange Act of 1934 are required with respect to such Pass-Through Transfer, in order to facilitate compliance with Regulation AB, the Seller and the Purchaser agree to comply with the provisions of the Regulation AB Compliance Addendum attached hereto as Exhibit G;
(d) if the related Purchaser transfers Mortgage Loans into a Pass-Through Transfer in accordance with this Agreement and if the related Purchaser or additional documentation one of its subsidiaries beneficially owns at least 100% of the most subordinate class of securities outstanding with respect to such Pass-Through Transfer, for purposes of qualifying for exemption from the Investment Company Act pursuant to Section 3(c)(5)(C), Countrywide agrees to include in the related Reconstitution Agreement, a section relating to special foreclosure rights in the form of Exhibit F attached hereto to the extent required to comply with the requisite provisions of the Code related to real estate investment trusts;
(e) if the related Purchaser transfers Mortgage Loans into a Pass-Through Transfer in accordance with this Agreement and if the related Purchaser executes a confidentiality agreement acceptable to Countrywide, in the form of Exhibit H attached hereto, Countrywide agrees to make available to the related Purchaser on a monthly basis, the information set forth in Exhibit I, attached hereto, relating to the performance of the Mortgage Loans (the “Monthly Report”) provided that such action does not materially adversely affect violate any applicable laws or agreements related to the rightsownership and/or servicing of such Mortgage Loans, as determined by Countrywide in its sole discretion. Such information may be provided in a form convenient to Countrywide; and
(f) If the related Purchaser transfers Mortgage Loans into a Pass-Through Transfer in accordance with this Agreement, then at the election of such Purchaser, in the event that any payment due under any Mortgage Loan and not postponed is not paid when the same becomes due and payable, or materially increase in the obligationsevent the related Mortgagor fails to perform any other covenant or obligation under such Mortgage Loan and such failure continues beyond any applicable grace period, Countrywide shall take such action, which action (notwithstanding anything contained herein or incorporated by reference to the contrary) may include but is not limited to effecting the sale of Borrower such Mortgage Loan on an as-is basis, as (1) Countrywide would undertake under the Loan Documents or change or affect in similar circumstances with respect to a manner adverse to Borrower the financial terms of the Loanssimilar mortgage loan held for its own account for investment, (b2) providing such information as may shall be reasonably requested by the Lenders or rating agencies in connection consistent with the rating of the Loans or the Securitizationaccepted servicing practices, and (c3) providing a certificate (i) agreeing Countrywide shall determine prudently to indemnify the Lender Parties, or any party providing credit support or otherwise participating be in the Securitizationbest interest of such Purchaser. Countrywide, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of the Purchaser, may also, in its sole discretion, as an alternative to foreclosure, sell defaulted Mortgage Loans at fair market value to third parties, if Countrywide believes, in its sole and exclusive discretion, that such sale would maximize proceeds to such Purchaser with respect to each Mortgage Loan. Notwithstanding any Loan Party other provision in this Agreement or otherwise, Countrywide shall have no liability to the Lender Partiers in connection Purchaser or any other party for Countrywide’s determination hereunder.
(iv) reasonably cooperate with any Loan Document master servicer, trustee or arise out credit enhancement parties involved in a Pass-Through Transfer and reasonable requests of such parties to the extent not materially burdensome and to the extent such requests do not impose any materially greater liability or are based upon less benefit to Countrywide than is provided in this Agreement; and
(v) deliver to the omission or alleged omission to state therein a material fact required to be stated therein, or necessary related Purchaser for inclusion in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal prospectus or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilitiesoffering material publicly available information regarding Countrywide.
Appears in 1 contract
Samples: Reconstituted Servicing Agreement (Luminent 2006-5)
Securitization. In addition to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) At the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) through the pledge request of the Loans as collateral security for loans holder of the Note and, to the extent not already required to be provided by Borrower under this Agreement, Borrower shall use reasonable efforts to satisfy the market standards to which the holder of the Note customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with the sale of all or a Lender Party portion of the Note, the participation therein or one or more successful securitizations of rated single or multi-class securities (the assignment "SECURITIES") secured by or issuance of direct or indirect evidencing ownership interests in the Loans Note and the Mortgages (such assale and/or securitization, for instance, collateralized loan obligationsthe "SECURITIZATION"), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by to: (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) provide such financial and other information with respect to the Properties, Borrower, REIT, Operating Partnership, each Operating Lessee and any such amendment or additional documentation does not impose material additional costs on Borrower and Manager, (ii) any provide budgets relating to the Properties, and (iii) to perform or permit or cause to be performed or permitted such amendment or additional documentation does not materially adversely affect the rightssite inspection, or materially increase the obligationsappraisals, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms market studies, environmental reviews and reports (Phase I's and, if appropriate, Phase II's), engineering reports and other due diligence investigations of the LoansProperties, (b) providing such information as may be reasonably requested by the Lenders holder of the Note or rating agencies the Rating Agencies or as may be necessary or appropriate in connection with the rating Securitization (the "Securitization Information"), together, if customary, with appropriate verification and/or consents of the Loans Securitization Information through letters of auditors or opinions of counsel of independent attorneys acceptable to Lender and the SecuritizationRating Agencies; (b) cause counsel to render opinions, which may be relied upon by the holder of the Note, the Rating Agencies and their respective counsel, agents and representatives, as to non- consolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Properties and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the holder of the Note and the Rating Agencies; (c) providing make such representations and warranties as of the closing date of the Securitization with respect to the Properties, Borrower, and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the holder of the Note or the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents; and (d) execute such amendments to the Loan Documents and organizational documents, enter into a certificate lockbox or similar arrangement with respect to the Rents and establish and fund such reserve funds (including, without limitation, reserve funds for deferred maintenance and capital improvements) as may be requested by the holder of the Note or the Rating Agencies or otherwise to effect the Securitization; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) agreeing to indemnify change the Lender Partiesinterest rate, the stated maturity or the amortization of principal set forth in the Note, or (ii) modify or amend any other material economic term of the Loan. All reasonable third party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the costs and expenses incurred by Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to Borrower's complying with requests made under this Section 14.1 shall be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer paid by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization LiabilitiesBorrower.
Appears in 1 contract
Samples: Loan Agreement (Winston Hotels Inc)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan or (iii) to securitize the Loans Loan or any portion thereof in a single asset securitization or a pooled loan securitization. The transaction referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, 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, Operating Partnership and Manager, (B) provide updated budgets 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 Loans Property (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of 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, the Rating Agencies and their respective counsel, agents and representatives, as collateral security for loans to a matters of Delaware law relating to limited liability companies, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender Party or and the assignment or issuance Rating Agencies;
(iii) provide updated, as of direct or indirect interests the closing date of the Secondary Market Transaction, representations and warranties made in the Loans Loan Documents and such additional representations and warranties as the Rating Agencies may reasonably require;
(iv) provide such asinformation, for instance, collateralized loan obligations), documents and agreements relating to the Property Documents as Lender may reasonably request in connection with a Secondary Market Transaction; and
(yv) execute such Securitization amendments to the Loan Documents and Borrower or any SPE Component Entity’s organizational documents as may be rated reasonably requested by a rating agency. The Loan Parties shall reasonably cooperate with Lender or requested by the Lender Parties Rating Agencies or otherwise to effect the Securitization including, without limitation, by bifurcation of the Loan into two or more components and/or separate notes and/or creating a senior/subordinate note structure (a) amending this Agreement and any of the other foregoing, a “Loan DocumentsBifurcation”); provided, and executing however, that Borrower shall not be required to modify or amend any Loan Document if such additional documentsmodification or amendment would change the interest rate, as reasonably requested by the Lenders stated maturity or the amortization of principal set forth in the Note, except in connection with a Loan Bifurcation which may result in varying fixed interest rates, but which shall have the Securitization; same weighted average coupon of the original Note.
(c) Borrower shall be responsible for any of Borrower’s out-of-pocket and internal costs and expenses incurred in connection with Borrower’s compliance with this Section 11.1 (including, without limitation, Borrower’s attorney’s fees and expenses), subject to an aggregate cap on such costs and expenses of $10,000.00, and provided that (i) Borrower shall not be required to reimburse Lender for Lender’s costs and expenses in connection with this Section 11.
1. Notwithstanding the foregoing or anything herein to the contrary, Borrower shall pay for any such amendment or additional documentation does not impose material additional costs on and expenses with respect to items which Borrower and (ii) any such amendment or additional documentation does not materially adversely affect is otherwise required to deliver pursuant to the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization LiabilitiesDocuments.
Appears in 1 contract
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization. The transactions referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge of the Loans as collateral security for loans market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans (such asmarketplace or by the Rating Agencies in connection with any Secondary Market Transactions, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, to:
(i) provide (A) updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, Sponsor, SPE Component Entity and Manager (provided, that, such financial information with respect to Sponsor and Guarantor shall, unless otherwise agreed to by (a) amending this Agreement and Borrower, be in the other Loan Documents, and executing such additional documents, same format as reasonably requested by the Lenders delivered to Lender in connection with the Securitization; provided that closing of the Loan), (iB) any such amendment updated budgets relating to the Property, and (C) 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 “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or additional documentation does not impose material additional costs on Borrower opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Xxxxxx, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Property Documents, Borrower and Borrower’s Affiliates, which counsel and opinions shall be satisfactory in form and substance to Lender and the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may reasonably require; and
(iv) execute such amendments to the Loan Documents, the Property Documents and Borrower’s or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect any Secondary Market Transaction, including, without limitation, (A) amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan into two or more components and/or additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would (1) change the interest rate, the stated maturity or additional documentation does not materially adversely affect the rightsamortization of principal set forth herein, (2) change the aggregate outstanding principal balance of the Loan, (3) alter the restrictions on transfers of equity interests in Borrower or materially increase transfers of the obligationsProperty, in each case, as set forth herein, (4) alter any limitations of Borrower’s recourse obligations under the Loan as contained herein or (5) alter any other material obligation, right or privilege of Borrower under the Loan Documents (other than to a de minimis extent or change except, in the case of each of (1) through (5) above, (y) as provided in subsection (C) above and (z) in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the same initial weighted average coupon of the original Note).
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender expects that Borrower alone or affect 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, net operating income, required under Item 1112(b)(1) of Regulation AB, if Xxxxxx 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 manner adverse 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 Borrower be included, as applicable, in the Securitization, or (ii) the financial terms statements required under Item 1112(b)(2) of Regulation AB, if Lender expects that the principal amount of the LoansLoan 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 fifteen (15) Business Days after notice from Lender in connection with the preparation of Disclosure Documents for the Securitization, (bB) providing 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 Xxxxxx, 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 information tenant or group of Affiliated tenants, a concentration within all of the mortgage loans included or expected to be included, as may applicable, in the Securitization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor.
(d) All financial data and statements provided by Borrower hereunder shall be prepared in accordance with GAAP or the income tax basis of accounting (unless GAAP or another accounting method is required by Regulation AB (to the extent applicable) or otherwise required by Legal Requirements (to the extent applicable), and shall meet the requirements of Regulation AB and other applicable legal requirements. All financial statements referred to in this Section 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 statements (audited or unaudited) provided by Borrower under this Section shall be accompanied by an Officer’s Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (d).
(e) If requested by Xxxxxx, Borrower shall provide Lender, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall determine to be required pursuant to Regulation AB or any amendment, modification or replacement thereto or other legal requirements in connection with any Disclosure Document or any Exchange Act Filing or as shall otherwise be reasonably requested by Lender.
(f) In the Lenders or rating agencies event Lender determines, in connection with the rating of the Loans or the a Securitization, that the financial data and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact financial statements required to be stated therein, or necessary in order to make comply with Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the statements thereinprovisions of this Section, in light of the circumstances under which they were made, not misleadingLender may request, and Borrower shall promptly provide, such indemnity shall survive any transfer by the Lenders other financial data and financial statements as Lender determines to be necessary or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties appropriate for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilitiescompliance.
Appears in 1 contract
Samples: Loan Agreement (Clipper Realty Inc.)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in one or more single asset securitizations or one or more pooled asset securitizations. The transactions referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lendex, Xxxrower and Guarantor shall assist Lender in satisfying the pledge of the Loans as collateral security for loans market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans (such asmarketplace or by the Rating Agencies in connection with any Secondary Market Transactions, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by to:
(ai) amending this Agreement provide (A) updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Guarantor, SPE Component Entity and Manager, (B) updated budgets relating to Borrower’s operations at the Properties, (C) 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 “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and the Rating Agencies and (D) revisions to and other agreements with respect to the Property Documents in form and substance acceptable to Lender and the Rating Agencies, provided, that, Borrower shall not be in violation of this provision to the extent such information relates to information regarding the Tenants under the Leased Fee Leases and such Tenants are not obligated to deliver such information under their Leased Fee Leases;
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Lendex, xxx Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Properties, Property Documents, Borrower and Borrower’s Affiliates, which counsel and opinions shall be satisfactory in form and substance to Lender and the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents; and
(iv) execute such amendments to the Loan Documents, the Property Documents and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) Borrower’s or any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies or rating agencies otherwise to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) further bifurcating the Loan into two or more additional components, re-allocating the Loan among existing components, reducing the number of components of the Loan and/or creating additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that Borrower and/or Guarantor shall not be required to so modify or amend any Loan Document if such modification or amendment would change any material economic or material non-economic term, including the interest rate or the stated maturity (except as provided in subclause (C) above), except in connection with a Loan Bifurcation which may result in varying interest rates but will have the same initial weighted average coupon of the original Note (except that the weighted average coupon of the original Note may vary (i) as a result of the application of proceeds following a casualty or condemnation, (ii) as a result of prepayments of the Loan during the continuance of an Event of Default, or (iii) or any principal prepayments received on the Loan).
(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 collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, each of Borrower and Guarantor 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 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 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 rating preparation of the Loans or Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (cC) providing 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 certificate filing pursuant to the Exchange Act in connection with or relating to the Securitization (ian “Exchange Act Filing”) agreeing is not required. If requested by Lendex, Xxxrower shall furnish to indemnify Lender financial data and/or financial statements for any tenant of the Property if, in connection with a Securitization, Lender Partiesexpects 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.
(d) All financial data and statements provided by Borroxxx xxx Guarantor hereunder 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 this Section 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 statements (audited or unaudited) provided by Borrower under this Section shall be accompanied by an Officer’s Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (d).
(e) If requested by Lender, each of Borrower and Guarantor shall provide Lender, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall determine to be required pursuant to Regulation AB or any party providing credit support amendment, modification or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages replacement thereto or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers other legal requirements in connection with any Loan Disclosure Document or arise out of any Exchange Act Filing or are based upon as shall otherwise be reasonably requested by Lender.
(f) In the omission or alleged omission to state therein event Lender determines, in connection with a material fact Securitization, that the financial data and financial statements required to be stated therein, or necessary in order to make comply with Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the statements thereinprovisions of this Section, in light of the circumstances under which they were made, not misleadingLender may request, and Borrower shall promptly provide, such indemnity shall survive any transfer by the Lenders other financial data and financial statements as Lender determines to be necessary or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties appropriate for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilitiescompliance.
Appears in 1 contract
Samples: Loan Agreement (Istar Inc.)
Securitization. In addition The Borrower and the General Partner shall use commercially reasonable best efforts to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) through the pledge of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect in its activities in connection with the Securitization includingsale of the Loan as a whole loan or any securitization of the Loan (the "Securitization"), without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested including obtaining ratings by the Lenders Rating Agencies. The Securitization will involve the issuance of rated single- or multi-class securities secured by or evidencing ownership interests in the Loan Documents (the "Certificates"). The Borrower acknowledges and agrees that, in connection with the Securitization; , (a) this Agreement, the Mortgage Note, the Security Documents and the other Loan Documents may be assigned, pursuant to the assignment, to a trustee (the "Trustee"), as trustee under a trust and servicing agreement (the "Trust and Servicing Agreement") in form substantially similar to those commonly used in rated commercial mortgage-backed securities offerings and (b) pursuant to the Trust and Servicing Agreement, a professional loan servicer of recognized standing (the "Servicer") would be appointed to service the Loan, this Agreement and the Loan Documents as provided that therein. The addresses of the Trustee and the Servicer will be provided to the Borrower and the Ground Lessors in writing before the Securitization is consummated. Upon such assignment, the Trustee shall for all purposes be the sole Lender hereunder and the sole mortgagee or beneficiary under the Mortgages (and all references herein to the "Lender" shall be deemed to refer to the Trustee) and shall, together with the Servicer, among other things, (i) any such amendment or additional documentation does not impose material additional costs on Borrower have the sole and (ii) any such amendment or additional documentation does not materially adversely affect exclusive benefit of and the rightsright and power to exercise, or materially increase to direct the obligationsexercise of, all the rights and remedies of Borrower the Lender hereunder and under the Loan Documents Security Documents, including the right to inspect the Collateral, to receive notices and financial information, to grant or change withhold consents or affect in a manner adverse approvals, to benefit from indemnities, to receive, hold and apply proceeds or any other amount or property provided by the Borrower hereunder, and, upon the financial terms occurrence and during the continuation of an Event of Default, to take any action required or permitted of the LoansLender with respect thereto, (b) providing such information as may be reasonably requested by all in the Lenders or rating agencies in connection with the rating Trustee's own name, and to exercise all other rights and remedies of the Loans or Lender hereunder and under the Securitization, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the LoansSecurity Documents, and (ii) be bound by all the terms hereof which apply to the Lender. The Borrower hereby acknowledges the foregoing and agrees to be bound to the Trustee, upon such assignment, recognizing the Trustee as the Lender hereunder as if the Trustee were named in this Agreement as the Lender, recognizing that the Servicer shall be entitled to act on behalf of the Trustee and the Holders under and as provided in the Trust and Servicing Agreement and shall be entitled to and shall receive all notices, financial and other information, agreements and other documents to be delivered to the Lender or the Trustee hereunder or under any of the other Loan Documents and accepting and agreeing to reimburse all of the terms reasonably set forth in the Trust and Servicing Agreement and the exhibits thereto, all of which shall be secured under the Security Documents. Upon such assignment, the Borrower's obligations to the Lender Parties specified in this Agreement shall be satisfied by the Borrower's tendering full and timely payment or performance thereof to the Trustee or, if directed by the Trustee, to the Servicer. With respect to the delivery of documents and other written material, the Trustee and the Servicer shall have only the obligations expressly required of the Lender herein or in the other Securitization Parties Loan Documents or of the Trustee or the Servicer in the Trust and Servicing Agreement. All rights and remedies of the Trustee as the Lender hereunder, including all indemnities running to the Lender, shall also operate for the benefit of the Servicer and the Holders, as provided in the Trust and Servicing Agreement, and shall be exercised by the Trustee and the Servicer in accordance with and subject to the terms and conditions set forth in the Trust and Servicing Agreement. The Borrower acknowledges and agrees that, until the Borrower has received notice from the Trustee to the contrary, and subject to the terms and conditions set forth in the Trust and Servicing Agreement to the contrary, all deliveries and notifications to be made by the Borrower to the Trustee, as Lender, pursuant to this Agreement or any legal or other expenses reasonably incurred by such Persons in connection with defending Loan Document shall be made to the Securitization LiabilitiesServicer only and not to the Trustee.
Appears in 1 contract
Samples: Loan Agreement (Courtyard by Marriott Limited Partnership)
Securitization. In addition Subject to any other assignment permitted pursuant Sections 11.7 hereof:
(a) Lender shall have the right (i) to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization. The transactions referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge of the Loans as collateral security for loans market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, including, without limitation and to the extent customary and reasonable as provided in this sentence, to:
(such asi) provide or cause Mortgage Borrower to provide (A) updated financial and other information reasonably available to Borrower with respect to the Property, for instancethe Collateral, collateralized loan obligations)the business operated at the Property, Borrower, Mortgage Borrower, Mezzanine B Borrower, Guarantor, SPE Component Entity, Mortgage SPE Component Entity, Mezzanine B SPE Component Entity and Manager, (B) updated budgets relating to the Property, and (yC) 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 “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and acceptable to the Rating Agencies and (D) revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies;
(ii) to the extent such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the opinions were delivered to Lender Parties to effect the Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; closing of the Loan (provided any such opinion was not waived by Lender with respect to the Loan), provide updated opinions of counsel, which may be relied upon by Lender and its counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Collateral, the Property, Property Documents, Borrower and Borrower’s Affiliates, Mortgage Borrower and Mortgage Borrower’s Affiliates which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and shall be satisfactory in form and substance to the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents (which representations and warranties may be updated to reflect any change in facts and circumstances since the Closing Date, provided that (i) any such amendment or additional documentation does change in facts and circumstances is not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of due to a Default by Borrower under the Loan Documents); and
(iv) execute such amendments to the Loan Documents, the Mortgage Loan Documents, the Property Documents and Borrower’s, Mortgage Borrower’s, any Mortgage SPE Component Entity’s or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies or rating agencies otherwise to effect any Secondary Market Transaction, including, without limitation, (A) amend and/or supplement the Independent Manager provisions provided herein and therein, in connection each case, in accordance with the rating applicable requirements of the Loans Rating Agencies, (B) bifurcating the Loan into two or more components and/or additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the Securitizationforegoing, a “Loan Bifurcation”) and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”C) to which modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Lender Parties Loan Documents, by up to ten (10) days; provided, however, that Borrower shall not be required to so modify or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in amend any Loan Document or organizational document if such modification or amendment shall impose a Secondary Market Adverse Change on the Borrower or Guarantor. The term “Secondary Market Adverse Change” means (i) either Borrower’s or Guarantor’s liabilities or obligations under the Loan Documents are increased, or Borrower’s or Guarantor’s rights under the Loan Documents are decreased, in either case in any writing delivered by or on behalf of any Loan Party to material respect (although change in the Lender Partiers weighted average interest rate described in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and clause (ii) agreeing below shall not be deemed to reimburse increase any such liability or decrease any such rights in any material respect), (ii) any change in the Lender Parties weighted average interest rate (whether before or after the time of the proposed Loan Bifurcation, Syndication or New Mezzanine Loan) (other than as a result of (x) payments and recoveries after an Event of Default and/or (y) application of proceeds following a Casualty or Condemnation), (iii) any change to the stated Maturity Date (other Securitization Parties for than as described in clause (C) above) and/or (iv) any legal or other expenses reasonably incurred by such Persons in connection with defending change that would affect the Securitization Liabilitiesamortization of the Loan.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Securitization. In addition SC and the General Partner shall use -------------- commercially reasonable best efforts to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) through the pledge of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders NACC in its activities in connection with the sale of the SC Loan as a whole loan or any securitization of the SC Loan (the "Securitization; provided "), including obtaining ratings by the Rating -------------- Agencies. The Securitization will involve the issuance of rated single- or multi-class securities secured by or evidencing ownership interests in the Transaction Documents (the "Securities"). Such cooperation shall include, ---------- without limitation, the obligation to:
(a) maintain the ownership of the SC Property in an entity that permits it to comply with its obligations under clauses (ix) any such amendment or additional documentation does not impose material additional costs on Borrower and (iiz) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, Section 5.2;
(b) providing to the extent permitted under SC's Amended and Restated Agreement of Limited Partnership without the consent of its limited partners, structure and maintain its organizational, operational and financial affairs and the affairs of the General Partner (collectively, the "Entities") to enable its -------- counsel to render a reasoned opinion if requested by the Rating Agencies in form and substance customary or required for rating the Securities (the "Substantive ----------- Consolidation Opinion") that upon a petition for bankruptcy under the United --------------------- States Bankruptcy Code, neither Host Marriott as a debtor in possession nor its bankruptcy trustees nor creditors should cause a court to order the substantive consolidation of SC's assets and liabilities or those of the General Partner with those of Host Marriott, which counsel and which opinion shall be satisfactory to NACC and the Rating Agencies;
(c) provide such financial and other information with respect to it and the SC Property as may be requested by the Rating Agencies or as may be reasonably requested by the Lenders NACC, including, without limitation, audits or rating agencies in connection with the rating agreed-upon procedures of the Loans or the Securitizationoperating cash flow and Net Operating Income, occupancy statistics, and average rents and quarterly and annual financial statements for the SC Property (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating reviewed and in the Securitization, including any investors in case of annual financial statements audited) by a securitization entity (collectively, firm of certified public accountants acceptable to NACC and the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party Rating Agencies to the Lender Partiers extent customarily given in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilities.similar transactions;
Appears in 1 contract
Samples: Loan Agreement (Marriott Hotel Properties Ii Limited Partnership)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan or (iii) to securitize the Loans Loan or any portion thereof in a single asset securitization or a pooled loan securitization. The transaction referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge of the Loans as collateral security for loans market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans marketplace or by the Rating Agencies in connection with any Secondary Market Transactions (such asprovided, that, Borrower shall only be responsible for instanceany of Borrower’s out-of-pocket and internal costs and expenses (together with Borrower’s attorney’s fees and expenses) incurred in connection with Borrower’s compliance with this Section 11.1, collateralized loan obligations)but Borrower shall not be required to reimburse Lender for Lender’s costs and expenses in connection with this Section 11.1 or any other third party’s costs and expenses in connection with this Section 11.1, except as expressly set forth above, 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 and Manager, (B) provide updated budgets relating to the Property, if any, and (yC) such Securitization 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 “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors acceptable to Lender and the Rating Agencies;
(ii) provide updates of opinions of counsel delivered at closing, which may be rated relied upon by a rating agency. The Lender, the Rating Agencies and their respective counsel, agents and representatives, which shall be satisfactory in form and substance to Lender and the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Parties shall Documents; and
(iv) execute such amendments to the Loan Documents and Borrower or any SPE Component Entity’s organizational documents as may be reasonably cooperate with requested by Lender or requested by the Lender Parties Rating Agencies or otherwise to effect the Securitization including, without limitation, by bifurcation of the Loan into two or more components and/or separate notes and/or creating a senior/subordinate note structure (any of the foregoing, a “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 stated maturity, the amortization of principal set forth in the Note (except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the same initial weighted average coupon of the original Note) or otherwise increase Borrower’s obligations or decrease Borrower’s rights, under the Loan Documents other than in a de-minimus manner; provided, however, (a) amending this Agreement prior to an Event of Default, payments and/or prepayments of principal hereunder shall be applied on a pro-rata basis to each loan component/note evidencing the Loan and (b) after an Event of Default, Lender may apply principal payments and/or prepayments in its sole discretion.
(c) If, at the other time one or more Disclosure Documents are being prepared for a Securitization, Lender expects that Borrower 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 request (i) the selected financial data or, if applicable, net operating income, described in Item 1112(b)(1) of Regulation AB, if Lender expects that the principal amount of the Loan Documentstogether 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 executing at any time during which the Loan (or portion of the Loan included in such additional documentsSecuritization) 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 reasonably requested by applicable, in such Securitization or (ii) the Lenders 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 at any time during which the Loan (or apportion 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; provided that , (iB) any such amendment or additional documentation does not impose material additional costs on later than thirty (30) days after the end of each fiscal quarter of Borrower and (iiC) 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 an Exchange Act Filing is not required. 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 any of the Properties if, in connection with a Securitization, Lender expects there to be, with respect to such amendment 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.
(d) All financial data and financial statements provided by Borrower hereunder pursuant to Section 11.1(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 11.1(c) above shall be audited by independent accountants of Borrower (which accountants shall be 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 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 11.1(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 11.1(d).
(e) If requested by Lender, Borrower shall provide Lender, promptly upon request, with any other or additional documentation does not materially adversely affect the rightsfinancial statements, or materially increase the obligationsfinancial, of Borrower under the Loan Documents statistical or change operating information, as Lender shall determine to be required pursuant to Regulation AB or affect any amendment, modification or replacement thereto or other legal requirements in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information connection with any Disclosure Document or any Exchange Act Filing or as may shall otherwise be reasonably requested by Lender.
(f) In the Lenders or rating agencies event Lender determines, in connection with the rating of the Loans or the a Securitization, that the financial data and financial statements and (cif applicable) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact related accountants’ reports and consents required to be stated therein, or necessary in order to make comply with Regulation AB or any amendment, modification or replacement of Regulation AB or with other legal requirements are other than as provided herein, then notwithstanding the statements thereinprovisions of Section 11.1(c) and (d), in light of the circumstances under which they were made, not misleadingLender may request, and Borrower shall promptly provide, such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, other financial statements and (iiif applicable) agreeing related accountants’ reports and consents as Lender determines to reimburse the Lender Parties and the other Securitization Parties be necessary or appropriate for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilitiescompliance.
Appears in 1 contract
Samples: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Securitization. In addition to (a) Borrower acknowledges and agrees that Lender may, at its sole cost and expense other than as set forth in Section 11.1(g) hereof, (i) sell or otherwise transfer the Loan as a whole loan or sell or otherwise transfer or syndicate all or any other assignment permitted pursuant to this Sectionportion of the Loan and the Loan Documents, (ii) sell participation interests in the Loan Parties hereby acknowledge that or (xiii) consummate one or more private or public securitizations of rated or unrated single-class or multi-class securities (the Lenders, their Affiliates and Approved Funds (“Lender PartiesSecurities”) may sell secured by or securitize evidencing ownership interests in all or any portion of the Loans Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (the transactions referred to in clauses (i), (ii), and (iii) above are each herein referred to collectively as “Secondary Market Transactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”).
(b) through the pledge of the Loans as collateral security for loans If requested by Xxxxxx, Borrower shall assist Lender in satisfying customary market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans (such asmarketplace or by the Rating Agencies in connection with any Secondary Market Transactions, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by to:
(ai) amending this Agreement provide or cause Mortgage Borrower to provide (A) updated financial and other information with respect to the Collateral, the Property, the business operated at the Property, Borrower, Mortgage Borrower, Mezzanine B Borrower, Guarantor, any SPE Component Entity, any Mortgage SPE Component Entity, any Mezzanine B SPE Component Entity, Manager, the Management Agreements, the Property Documents, the PILOT Leases, the PILOT Documents and any Tenant, (B) updated budgets relating to the Property, (C) 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 “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies and (D) to the extent that the agreement or consent of any relevant third-parties can reasonably be obtained, as applicable, revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies; provided that Borrower shall not be required to provide additional information regarding the identity of any indirect investors in Borrower (or their respective Affiliates);
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Xxxxxx, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, the Collateral, Property Documents, Borrower, Mortgage Borrower, Mezzanine B Borrower and each of their respective Affiliates, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and satisfactory in form and substance to the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may require; and
(iv) execute such amendments to the Loan Documents, Mortgage Loan Documents, Mezzanine B Loan Documents, the Property Documents, and executing such additional documentsBorrower’s, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) Mortgage Borrower’s, Mezzanine B Borrower’s, any such amendment SPE Component Entity’s, any Mortgage SPE Component Entity’s or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information Mezzanine B SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies or rating agencies otherwise to effect any Secondary Market Transaction, including, without limitation, (A) amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan into (I) one or more participations or (II) one or more component and/or additional separate notes and/or creating additional senior/subordinate note structure(s) and reallocating the principal amount of the Loan and the Spread among such components and/or notes evidencing the Loan, the Mortgage Loan and/or the Mezzanine B Loan (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that (I) the outstanding principal amount of such participations, loans, components and/or notes shall equal the outstanding principal amount of the Loan immediately prior to the creation thereof and (II) Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would require amortization of the Loan, change the weighted average Spread or the stated maturity (except as provided in subclause (C) above) (it being agreed that that the weighted average Spread may subsequently change as a result of (x) after a rated Securitization, any voluntary prepayment of the Loan, Mortgage Loan and Mezzanine B Loan and (y) any applications to principal during the continuance of an Event of Default, a Mortgage Loan Event of Default or a Mezzanine B Loan Event of Default; provided, further, that (i) the Stated Maturity Date shall not be affected and the time periods during which Borrower is permitted to perform its obligations under the Loan Documents shall not be decreased; (ii) no such bifurcation or reallocation shall require any amortization of the Loan, (iii) there shall be no modification of the Loan Documents except to reflect the creation of such loans, participations, components or notes and the loan documents relating to such loans, components and/or notes shall be in substantially the form of the Loan Documents and (iv) neither Borrower nor Guarantor shall be required to enter into any amendment which increases Borrower’s or Guarantor’s liability under the Loan Documents in any material respect or decreases Borrower’s or Guarantor’s rights under the Loan Documents in any material respect. For avoidance of doubt, at all times the weighted average Interest Rate of all components of the Loan shall equal the weighted average Interest Rate at Closing; provided, however, that the weighted average Interest Rate may subsequently change as a result of (x) after a rated Securitization, any prepayment of the Loan and (y) any applications to principal during the continuance of an Event of Default.
(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 collectively or the Collateral and Related Collateral collectively, or the Property or Collateral alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request (without duplication and to the extent not previously provided) (i) the selected financial data 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 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 rating preparation of the Loans or Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (cC) providing 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 certificate filing pursuant to the Exchange Act in connection with or relating to the Securitization (ian “Exchange Act Filing”) agreeing is not required. If requested by Xxxxxx, Borrower shall furnish to indemnify Lender financial data and/or financial statements for any tenant of the Property (in Borrower’s possession or control and permitted to be disclosed) if, in connection with a Securitization, Lender Partiesexpects 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.
(d) All financial data and statements provided by Borrower hereunder 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 this Section shall be audited by Deloitte, Ernst & Young, RSM McGladrey, Xxxxx Xxxxxx Xxxxx, PwC or other independent certified public accountant reasonably approved by 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 statements (audited or unaudited) provided by Borrower under this Section shall be accompanied by an Officer’s Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (d).
(e) If requested by Xxxxxx, Borrower shall provide Lender, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall determine to be required pursuant to Regulation AB or any party providing credit support amendment, modification or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages replacement thereto or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers other legal requirements in connection with any Loan Disclosure Document or arise out of any Exchange Act Filing or are based upon as shall otherwise be reasonably requested by Lender, in each case, to the omission or alleged omission extent reasonably available to state therein Borrower.
(f) In the event Lender determines, in connection with a material fact Securitization, that the financial data and financial statements required to be stated therein, or necessary in order to make 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 this Section, Lender may request, and Borrower shall promptly provide, such other financial data and financial statements thereinas Lender determines to be necessary or appropriate for such compliance, in light of each case, to the circumstances under which they were made, not misleading, extent reasonably available to Borrower.
(g) All reasonable out-of-pocket third-party costs and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons Xxxxxxxx and Guarantor in connection with defending Borrower’s compliance with requests made under this Article 11 (including any documentary stamp, intangible or other mortgage taxes) and any fees and expenses of the Rating Agencies incurred in connection with a syndication and/or Securitization Liabilitiesof the Loan shall be paid by Borrower, including any AUP costs incurred before or after the Closing Date. In addition, Borrower and Guarantor shall be responsible for the payment of all of Borrower’s and Guarantor’s respective attorneys’ fees and expenses with respect to requests made pursuant to Section 11.1, Section 11.2, and Section 11.6.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Industrial Logistics Properties Trust)
Securitization. In addition to (a) Borrower acknowledges and agrees that Lender may, at its sole cost and expense other than as set forth in Section 11.1(g) hereof, (i) sell or otherwise transfer the Loan as a whole loan or sell or otherwise transfer or syndicate all or any other assignment permitted pursuant to this Sectionportion of the Loan and the Loan Documents, (ii) sell participation interests in the Loan Parties hereby acknowledge that or (xiii) consummate one or more private or public securitizations of rated or unrated single-class or multi-class securities (the Lenders, their Affiliates and Approved Funds (“Lender PartiesSecurities”) may sell secured by or securitize evidencing ownership interests in all or any portion of the Loans Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (the transactions referred to in clauses (i), (ii), and (iii) above are each herein referred to collectively as “Secondary Market Transactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”).
(b) through the pledge of the Loans as collateral security for loans If requested by Lxxxxx, Borrower shall assist Lender in satisfying customary market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans (such asmarketplace or by the Rating Agencies in connection with any Secondary Market Transactions, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by to:
(ai) amending this Agreement provide or cause Mortgage Borrower to provide (A) updated financial and other information with respect to the Collateral, the Property, the business operated at the Property, Borrower, Mortgage Borrower, Guarantor, any SPE Component Entity, any Mortgage SPE Component Entity, Manager, the Management Agreements, the Property Documents, the Ground Leases, the PILOT Leases, the PILOT Documents and any Tenant, (B) updated budgets relating to the Property, (C) 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 “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies and (D) to the extent that the agreement or consent of any relevant third-parties can reasonably be obtained, as applicable, revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies; provided that Borrower shall not be required to provide additional information regarding the identity of any indirect investors in Borrower (or their respective Affiliates);
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Lxxxxx, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, the Collateral, Property Documents, Borrower, Mortgage Borrower and each of their respective Affiliates, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and satisfactory in form and substance to the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may require; and
(iv) execute such amendments to the Loan Documents, Mortgage Loan Documents, the Property Documents, and executing such additional documentsBorrower’s, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) Mortgage Borrower’s, any such amendment SPE Component Entity’s or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information Mortgage SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies or rating agencies otherwise to effect any Secondary Market Transaction, including, without limitation, (A) amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan into (I) one or more participations or (II) one or more component and/or additional separate notes and/or creating additional senior/subordinate note structure(s) and reallocating the principal amount of the Loan and the Spread among such components and/or notes evidencing the Loan and/or the Mortgage Loan (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that (I) the outstanding principal amount of such participations, loans, components and/or notes shall equal the outstanding principal amount of the Loan immediately prior to the creation thereof and (II) Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would require amortization of the Loan, change the weighted average Spread or the stated maturity (except as provided in subclause (C) above) (it being agreed that that the weighted average Spread may subsequently change as a result of (x) after a rated Securitization, any voluntary prepayment of the Loan and Mortgage Loan and (y) any applications to principal during the continuance of an Event of Default or a Mortgage Loan Event of Default; provided, further, that (i) the Stated Maturity Date shall not be affected and the time periods during which Borrower is permitted to perform its obligations under the Loan Documents shall not be decreased; (ii) no such bifurcation or reallocation shall require any amortization of the Loan, (iii) there shall be no modification of the Loan Documents except to reflect the creation of such loans, participations, components or notes and the loan documents relating to such loans, components and/or notes shall be in substantially the form of the Loan Documents and (iv) neither Borrower nor Guarantor shall be required to enter into any amendment which increases Borrower’s or Guarantor’s liability under the Loan Documents in any material respect or decreases Borrower’s or Guarantor’s rights under the Loan Documents in any material respect. For avoidance of doubt, at all times the weighted average Interest Rate of all components of the Loan shall equal the weighted average Interest Rate at Closing; provided, however, that the weighted average Interest Rate may subsequently change as a result of (x) after a rated Securitization, any voluntary prepayment of the Loan and (y) any applications to principal during the continuance of an Event of Default.
(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 collectively, or the Property or Collateral alone or the Property and Related Properties collectively or the Collateral and Related Collateral collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request (without duplication and to the extent not previously provided) (i) the selected financial data 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 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 rating preparation of the Loans or Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (cC) providing 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 certificate filing pursuant to the Exchange Act in connection with or relating to the Securitization (ian “Exchange Act Filing”) agreeing is not required. If requested by Lxxxxx, Borrower shall furnish to indemnify Lender financial data and/or financial statements for any tenant of the Property (in Borrower’s possession or control and permitted to be disclosed) if, in connection with a Securitization, Lender Partiesexpects 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.
(d) All financial data and statements provided by Borrower hereunder 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 this Section shall be audited by Deloitte, Ernst & Young, RSM McGladrey, Bxxxx Nxxxxx Nxxxx, PwC or other independent certified public accountant reasonably approved by 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 statements (audited or unaudited) provided by Borrower under this Section shall be accompanied by an Officer’s Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (d).
(e) If requested by Lxxxxx, Borrower shall provide Lender, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall determine to be required pursuant to Regulation AB or any party providing credit support amendment, modification or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages replacement thereto or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers other legal requirements in connection with any Loan Disclosure Document or arise out of any Exchange Act Filing or are based upon as shall otherwise be reasonably requested by Lender, in each case, to the omission or alleged omission extent reasonably available to state therein Borrower.
(f) In the event Lender determines, in connection with a material fact Securitization, that the financial data and financial statements required to be stated therein, or necessary in order to make 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 this Section, Lender may request, and Borrower shall promptly provide, such other financial data and financial statements thereinas Lender determines to be necessary or appropriate for such compliance, in light of each case, to the circumstances under which they were made, not misleading, extent reasonably available to Borrower.
(g) All reasonable out-of-pocket third-party costs and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons Bxxxxxxx and Guarantor in connection with defending Borrower’s compliance with requests made under this Article 11 (including any documentary stamp, intangible or other mortgage taxes) and any fees and expenses of the Rating Agencies incurred in connection with a syndication and/or Securitization Liabilitiesof the Loan shall be paid by Borrower, including any AUP costs incurred before or after the Closing Date. In addition, Borrower and Guarantor shall be responsible for the payment of all of Borrower’s and Guarantor’s respective attorneys’ fees and expenses with respect to requests made pursuant to Section 11.1, Section 11.2, and Section 11.6.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Industrial Logistics Properties Trust)
Securitization. In addition to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (each, a “Lender Party” and collectively, “Lender Parties”) may sell or securitize the Loans (a “Securitization”) through the pledge of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agencyRating Agency (as defined in Section 10.12). The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies Rating Agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilities.
Appears in 1 contract
Securitization. In addition to Lender may, at any other assignment permitted pursuant to time, sell, transfer or assign this SectionAgreement, Loan Parties hereby acknowledge that (x) the LendersNote, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) through the pledge of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by (a) amending this Agreement Security Instrument and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection any or all servicing rights with the Securitization; provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rightsrespect thereto, or materially increase grant participations therein (the obligations“Securities”) (such sales, of Borrower under the Loan Documents transfers, assignments and/or participations, collectively, a “Securitization”). Lender may forward to each purchaser, transferee, assignee, servicer, participant or change investor in such participations or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity Securities (collectively, the “Securitization PartiesInvestor”) for or any lossesRating Agency rating such Securities, claimseach prospective Investor, damages and any organization maintaining databases on the underwriting and performance of commercial mortgage loans, all documents and information which Lender now has or liabilities (may hereafter acquire relating to the “Securitization Liabilities”) Loan or to which Borrower, any Guarantor or the Property, whether furnished by Borrower, any Guarantor or otherwise, as Lender Parties determines necessary or such Securitization Parties desirable, including, without limitation, financial statements relating to Borrower, Guarantor, the Property and any Tenant at the Property. Borrower irrevocably waives any and all rights it may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document have under law or in equity to prohibit such disclosure, including but not limited to any writing delivered by or on behalf right of any Loan Party privacy. Any assignee shall be treated as a Lender for all purposes hereunder. Any purchaser of a participation interest shall be entitled to the benefits of Section 2.11 and Section 5.1.24 as if it were a Lender Partiers in connection with any Loan Document or arise out of or are based upon hereunder (subject to the omission or alleged omission to state therein a material fact required to be stated requirements and limitations therein, or necessary in order including the requirements under Section 2.11(e) (it being understood that the documentation required under Section 2.11(e) shall be delivered to make the statements thereinparticipating Lender). NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization LiabilitiesLENDER SHALL HAVE NO RIGHT TO ISSUE MORTGAGE PASS-THROUGH CERTIFICATES OR OTHER SECURITIES EVIDENCING A BENEFICIAL INTEREST IN A RATED OR UNRATED PUBLIC OFFERING OR PRIVATE PLACEMENT OR ENGAGE IN ANY OTHER CMBS OR SIMILAR SECURITIZATION OF THE LOAN.
Appears in 1 contract
Samples: Loan Agreement (Howard Hughes Corp)
Securitization. In addition (a) Manager shall use commercially reasonable efforts to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) cooperate with Lender in its activities in connection with the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) through the pledge sale of the Loans as collateral security for loans to a Lender Party whole loan or the assignment or issuance any securitization of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligationsthe "Securitization"), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating including -------------- obtaining ratings of the Loans or the Securities by the Rating Agencies and annual rating reviews of the Loans or the Securities by the Rating Agencies. The Securitization will involve the issuance of rated single- or multi-class securities secured by or evidencing ownership interests in the Transaction Documents (the "Securities"). Such cooperation shall include, without ---------- limitation, the obligation to cooperate with Lender in providing to the Rating Agencies such information as is customarily provided by a property manager on behalf of a borrower in connection with annual reviews conducted in commercial mortgage backed securities transactions similar to the Securitization, and (c) providing a certificate (i) agreeing provided, however, that in no event shall Manager be required to indemnify cooperate in any request for Manager, Marriott or any Marriott Affiliate to be rated by any Rating Agency that, as of the Lender Partiesdate hereof, does not rate Manager, Marriott, or any party providing credit support or otherwise participating in the SecuritizationMarriott Affiliate.
(b) Lender shall indemnify, defend and hold Manager, Marriott and all Marriott Affiliates (and their respective directors, officers, shareholders, employees and agents) harmless from and against all loss, costs, liability and damage, including any investors in a securitization entity attorneys' fees and expenses, and the costs of litigation related thereto (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”collectively "Losses") to which the Lender Parties or any such Securitization Parties persons may become ------ subject under the Securities Act of 1933, as amended, or otherwise, insofar as the Securitization Liabilities Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the offering documents used in the offering of the Securities or any Loan Document or in any writing delivered other securities issued by or on behalf of any Loan Party Lender with respect to the Lender Partiers in connection with any Loan Document Loans or arise out of or are based upon the omission or alleged omission to state therein in such offering documents a material fact required to be stated therein, therein or necessary in order to make the statements therein, in light of the circumstances under in which they were made, not misleading; provided, and however, that the -------- ------- indemnification contained herein shall not be operative if such indemnity shall survive untrue statement or omission was made in reliance upon any transfer information given by Manager to Borrower or the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization LiabilitiesSanta Xxxxx Partnership.
Appears in 1 contract
Securitization. In addition Notwithstanding anything set forth herein to the contrary, and without limiting the generality of the foregoing, Lender shall have the right to 153758634 Loan Agreement (CT/NJ Loan) - GTJ Portfolio Refinancing - AIG securitize the Loan (or any portion thereof or interest therein) in a commercial mortgage backed securitization or any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell public offering or securitize the Loans private placement (a “Securitization”) through the pledge of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties Borrowers shall reasonably cooperate with Lender in effecting any such Securitization (without cost or expense to Borrowers (provided, however, that Borrowers shall be responsible for attorney’s fees incurred by Borrowers in excess of $25,000.00)). Borrowers authorize Lender to disclose to any actual or prospective participant or transferee of the Lender Parties to effect Loan (or any investor in such securities issued in connection with a Securitization or any rating agency rating such securities) any and all financial and other information then in Lender’s possession concerning the Securitization includingProperty, without limitationthe Borrower Control Persons and their respective Affiliates, by (a) amending this Agreement and or the other Loan Documents, and executing such additional documents, as reasonably Loan. If requested by Lender, whether prior to, on or following the Lenders Closing Date, 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 any rating agency to be included in any loan documentation and/or disclosure documentation or otherwise in connection with any such Securitization. Without limiting the foregoing, if Lender reasonably deems it necessary to satisfy the market standards to which Lender customarily adheres or that may be reasonably required in the marketplace or by any rating agency in connection with any such Securitization, Borrowers shall deliver to Lender revised organizational documents for the Borrowers and/or Managing Member that provide for one (1) or more Independent Managers. Borrowers shall indemnify Lender (and its Affiliates) in connection with any material misstatement or material omission in the offering materials for such Securitization provided that such disclosure is based on information delivered by any Borrower Control Person to Administrative Agent and/or Lender. Lender shall reimburse Borrowers for all actual documented out-of-pocket attorney’s fees actually incurred by Borrowers in connection with the Securitizationforegoing; provided provided, however, that (i) any such amendment or additional documentation does Lender shall not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary reimburse Borrowers for attorney’s fees in order to make the statements therein, in light excess of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilities$25,000.00.
Appears in 1 contract
Samples: Loan Agreement (GTJ Reit, Inc.)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan or (iii) to securitize the Loans Loan or any portion thereof in a single asset securitization or a pooled loan securitization. The transactions referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, at Borrower’s cost and expense (subject to the out-of-pocket cap set forth in Section 11.1(g) after which it shall be at Lender’s cost and expense), including, without limitation, to:
(i) (A) provide updated financial and other information reasonably available to (or able to be obtained or prepared by) Borrower with respect to the Property, the business operated at the Properties, Borrower, Guarantor and Manager in each case consistent with the information required to be delivered pursuant to Section 4.12 hereof, (B) provide updated budgets 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 Loans Property (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and acceptable to the Rating Agencies; provided that Borrower shall not be required to provide any documents or information (other than updates, changes or supplements to information or documents previously provided by or on behalf of Borrower or its Affiliates in connection with the origination of the Loan) to the extent such information or documents are not in the possession of Borrower or its Affiliates or would be unduly burdensome or costly for Borrower to obtain and deliver;
(ii) provide opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as collateral security for loans to non-consolidation, matters of Delaware and federal bankruptcy law relating to limited liability companies or any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property and Borrower and Borrower’s Affiliates, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents;
(iv) at any time prior to a Secondary Market Transaction, execute such amendments to the Loan Documents as reasonably requested by Lender Party or to change the assignment or issuance dates on which the Monthly Payment Date and Maturity Date occur; provided that, such change in Maturity Date shall only be with respect to the day of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations)month, and not the year or month, of such Maturity Date; and
(yv) execute such Securitization amendments to the Loan Documents and Borrower or any SPE Component Entity’s organizational documents as may be rated reasonably requested by a rating agency. The Loan Parties shall reasonably cooperate with Lender or requested by the Lender Parties Rating Agencies or otherwise to effect the Securitization including, without limitation, by bifurcation of the Loan into two or more components and/or separate notes and/or creating a senior/subordinate note structure (aany of the foregoing, a “Loan Bifurcation”); provided, however, that Borrower shall not be required to modify or amend any Loan Document or organizational document if such modification or amendment would (A) amending this Agreement increase Borrower’s obligations or decrease Borrower’s rights, except to a de minimis extent or (B) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which (x) shall have the other Loan Documentssame initial weighted average coupon of the original Note and (y) shall not result in any “rate creep” due to repayments of principal, and executing such additional documents, as reasonably requested by the Lenders except in connection with any prepayment in connection with the release of Individual Properties, repayment during an Event of Default or prepayment in connection with any Casualty or Condemnation.
(c) If, at the time one or more Disclosure Documents are being prepared for a Securitization; provided , Lender expects that Borrower 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 request (i) the selected financial data or, if applicable, net operating income, described in 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 amendment Securitization may, or additional documentation does 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 (or portion of the Loan included in such Securitization) 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 such Securitization or (ii) the 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 at any time during which the Loan (or apportion 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. Notwithstanding anything herein to the contrary, such financial data or financial statements shall be furnished to Lender (A) within ten (10) Business Days after written notice from Lender in connection with the preparation of Disclosure Documents for the Securitization, (B) not impose material additional costs on later than forty-five (45) days after the end of each fiscal quarter of Borrower and (iiC) not later than one hundred twenty (120) 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 an Exchange Act Filing is not required. If reasonably 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 any of the Properties if, in connection with a Securitization, Lender expects there to be, with respect to such amendment 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.
(d) All financial data and financial statements provided by Borrower hereunder pursuant to Section 11.1(c) and (d) hereof shall be prepared in accordance with GAAP, and shall meet the applicable requirements of Regulation AB and other applicable legal requirements. All financial statements referred to in Section 11.1(c)(C) above shall be audited by independent accountants of Borrower (which accountants shall be 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 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 11.1(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 11.1(d).
(e) If requested by Lender, Borrower shall provide Lender, promptly upon request, with any other or additional documentation does not materially adversely affect the rightsfinancial statements, or materially increase the obligationsfinancial, of Borrower under the Loan Documents statistical or change operating information, as Lender shall determine to be required pursuant to Regulation AB or affect any amendment, modification or replacement thereto or other legal requirements in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information connection with any Disclosure Document or any Exchange Act Filing or as may shall otherwise be reasonably requested by Lender.
(f) In the Lenders or rating agencies event Lender determines, in its reasonable discretion, in connection with the rating of the Loans or the a Securitization, that the financial data and financial statements and (cif applicable) providing a certificate (i) agreeing related accountants’ reports and consents required in order to indemnify the Lender Parties, comply with Regulation AB or any party providing credit support amendment, modification or otherwise participating in replacement of Regulation AB or with other legal requirements are other than as provided herein, then notwithstanding the Securitizationprovisions of this Section, including any investors in a securitization entity Lender may request, and Borrower shall use commercially reasonable efforts to provide, such other financial statements and (collectivelyif applicable) related accountants’ reports and consents as Lender determines to be reasonably necessary or appropriate for such compliance.
(g) Except for the costs of Borrower’s and Guarantor’s legal counsel and the first $50,000.00 of Lender’s out-of-pocket expenses, the “Securitization Parties”) for any lossesall reasonable out-of-pocket costs and expenses actually incurred by Borrower, claims, damages Guarantor or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out this Section 11.1, including the reasonable fees of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably third-party vendors actually incurred by such Persons in connection with defending the Securitization LiabilitiesBorrower or Guarantor, shall be paid by Lender.
Appears in 1 contract
Securitization. In addition to (a) Borrower acknowledges and agrees that Lender may, at its sole cost and expense other than as set forth in Section 11.1(g) hereof, (i) sell or otherwise transfer the Loan as a whole loan or sell or otherwise transfer or syndicate all or any other assignment permitted pursuant to this Sectionportion of the Loan and the Loan Documents, (ii) sell participation interests in the Loan Parties hereby acknowledge that or (xiii) consummate one or more private or public securitizations of rated or unrated single-class or multi-class securities (the Lenders, their Affiliates and Approved Funds (“Lender PartiesSecurities”) may sell secured by or securitize evidencing ownership interests in all or any portion of the Loans Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (the transactions referred to in clauses (i), (ii), and (iii) above are each herein referred to collectively as “Secondary Market Transactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”).
(b) through the pledge of the Loans as collateral security for loans If requested by Xxxxxx, Borrower shall assist Lender in satisfying customary market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans (such asmarketplace or by the Rating Agencies in connection with any Secondary Market Transactions, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by to:
(ai) amending this Agreement provide or cause Mortgage Borrower to provide (A) updated financial and other information with respect to the Collateral, the Mezzanine A Collateral, the Property, the business operated at the Property, Borrower, Mortgage Borrower, Mezzanine A Borrower, Guarantor, any SPE Component Entity, any Mortgage SPE Component Entity, any Mezzanine A SPE Component Entity, Manager, the Management Agreements, the Property Documents, the PILOT Leases, the PILOT Documents and any Tenant, (B) updated budgets relating to the Property, (C) 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 “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies and (D) to the extent that the agreement or consent of any relevant third-parties can reasonably be obtained, as applicable, revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies; provided that Borrower shall not be required to provide additional information regarding the identity of any indirect investors in Borrower (or their respective Affiliates);
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, the Mezzanine A Collateral, the Collateral, Property Documents, Borrower, Mortgage Borrower, Mezzanine A Borrower and each of their respective Affiliates, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and satisfactory in form and substance to the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may require; and
(iv) execute such amendments to the Loan Documents, Mortgage Loan Documents, Mezzanine A Loan Documents, the Property Documents, and executing such additional documentsBorrower’s, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) Mortgage Borrower’s, Mezzanine A Borrower’s, any such amendment SPE Component Entity’s, any Mortgage SPE Component Entity’s or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information Mezzanine A SPE Component Entity’s organizational documents as may be reasonably requested by Xxxxxx or requested by the Lenders Rating Agencies or rating agencies otherwise to effect any Secondary Market Transaction, including, without limitation, (A) amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan into (I) one or more participations or (II) one or more component and/or additional separate notes and/or creating additional senior/subordinate note structure(s) and reallocating the principal amount of the Loan and the Spread among such components and/or notes evidencing the Loan, the Mortgage Loan and/or the Mezzanine A Loan (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that (I) the outstanding principal amount of such participations, loans, components and/or notes shall equal the outstanding principal amount of the Loan immediately prior to the creation thereof and (II) Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would require amortization of the Loan, change the weighted average Spread or the stated maturity (except as provided in subclause (C) above) (it being agreed that that the weighted average Spread may subsequently change as a result of (x) after a rated Securitization, any voluntary prepayment of the Loan, Mortgage Loan and Mezzanine A Loan and (y) any applications to principal during the continuance of an Event of Default, a Mortgage Loan Event of Default or a Mezzanine A Loan Event of Default; provided, further, that (i) the Stated Maturity Date shall not be affected and the time periods during which Borrower is permitted to perform its obligations under the Loan Documents shall not be decreased; (ii) no such bifurcation or reallocation shall require any amortization of the Loan, (iii) there shall be no modification of the Loan Documents except to reflect the creation of such loans, participations, components or notes and the loan documents relating to such loans, components and/or notes shall be in substantially the form of the Loan Documents and (iv) neither Borrower nor Guarantor shall be required to enter into any amendment which increases Borrower’s or Guarantor’s liability under the Loan Documents in any material respect or decreases Borrower’s or Guarantor’s rights under the Loan Documents in any material respect. For avoidance of doubt, at all times the weighted average Interest Rate of all components of the Loan shall equal the weighted average Interest Rate at Closing; provided, however, that the weighted average Interest Rate may subsequently change as a result of (x) after a rated Securitization, any prepayment of the Loan and (y) any applications to principal during the continuance of an Event of Default.
(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 collectively or the Collateral and Related Collateral collectively, or the Property or Collateral alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request (without duplication and to the extent not previously provided) (i) the selected financial data 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 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 rating preparation of the Loans or Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (cC) providing 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 certificate filing pursuant to the Exchange Act in connection with or relating to the Securitization (ian “Exchange Act Filing”) agreeing is not required. If requested by Xxxxxx, Borrower shall furnish to indemnify Lender financial data and/or financial statements for any tenant of the Property (in Borrower’s possession or control and permitted to be disclosed) if, in connection with a Securitization, Lender Partiesexpects 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.
(d) All financial data and statements provided by Borrower hereunder 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 this Section shall be audited by Deloitte, Ernst & Young, RSM McGladrey, Xxxxx Xxxxxx Xxxxx, PwC or other independent certified public accountant reasonably approved by 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 statements (audited or unaudited) provided by Borrower under this Section shall be accompanied by an Officer’s Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (d).
(e) If requested by Xxxxxx, Borrower shall provide Lender, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall determine to be required pursuant to Regulation AB or any party providing credit support amendment, modification or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages replacement thereto or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers other legal requirements in connection with any Loan Disclosure Document or arise out of any Exchange Act Filing or are based upon as shall otherwise be reasonably requested by Lender, in each case, to the omission or alleged omission extent reasonably available to state therein Borrower.
(f) In the event Lender determines, in connection with a material fact Securitization, that the financial data and financial statements required to be stated therein, or necessary in order to make 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 this Section, Lender may request, and Borrower shall promptly provide, such other financial data and financial statements thereinas Lender determines to be necessary or appropriate for such compliance, in light of each case, to the circumstances under which they were made, not misleading, extent reasonably available to Borrower.
(g) All reasonable out-of-pocket third-party costs and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons Xxxxxxxx and Guarantor in connection with defending Borrower’s compliance with requests made under this Article 11 (including any documentary stamp, intangible or other mortgage taxes) and any fees and expenses of the Rating Agencies incurred in connection with a syndication and/or Securitization Liabilitiesof the Loan shall be paid by Borrower, including any AUP costs incurred before or after the Closing Date. In addition, Borrower and Guarantor shall be responsible for the payment of all of Borrower’s and Guarantor’s respective attorneys’ fees and expenses with respect to requests made pursuant to Section 11.1, Section 11.2, and Section 11.6.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Industrial Logistics Properties Trust)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization. The transactions referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge of the Loans as collateral security for loans market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans (such asmarketplace or by the Rating Agencies in connection with any Secondary Market Transactions, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, to:
(i) provide (A) updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, Sponsor, SPE Component Entity and Manager (provided, that, such financial information with respect to Sponsor and Guarantor shall, unless otherwise agreed to by (a) amending this Agreement and Borrower, be in the other Loan Documents, and executing such additional documents, same format as reasonably requested by the Lenders delivered to Lender in connection with the Securitization; provided that closing of the Loan), (iB) any such amendment updated budgets relating to the Property, and (C) 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 “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or additional documentation does not impose material additional costs on Borrower opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Property Documents, Borrower and Borrower’s Affiliates, which counsel and opinions shall be satisfactory in form and substance to Lender and the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may reasonably require; and
(iv) execute such amendments to the Loan Documents, the Property Documents and Borrower’s or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect any Secondary Market Transaction, including, without limitation, (A) amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan into two or more components and/or additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would (1) change the interest rate, the stated maturity or additional documentation does not materially adversely affect the rightsamortization of principal set forth herein, (2) change the aggregate outstanding principal balance of the Loan, (3) alter the restrictions on transfers of equity interests in Borrower or materially increase transfers of the obligationsProperty, in each case, as set forth herein, (4) alter any limitations of Borrower’s recourse obligations under the Loan as contained herein or (5) alter any other material obligation, right or privilege of Borrower under the Loan Documents (other than to a de minimis extent or change except, in the case of each of (1) through (5) above, (y) as provided in subsection (C) above and (z) in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the same initial weighted average coupon of the original Note).
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender expects that Borrower alone or affect 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, 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 and at any time during which the Loan and any Related Loans are included in a manner adverse 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 Borrower be included, as applicable, in the Securitization, or (ii) the financial terms statements required under Item 1112(b)(2) of Regulation AB, if Lender expects that the principal amount of the LoansLoan 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 fifteen (15) Business Days after notice from Lender in connection with the preparation of Disclosure Documents for the Securitization, (bB) providing 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 for any tenant of the Property if, in connection with a Securitization, Lender expects there to be, with respect to such information tenant or group of Affiliated tenants, a concentration within all of the mortgage loans included or expected to be included, as may applicable, in the Securitization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor.
(d) All financial data and statements provided by Borrower hereunder shall be prepared in accordance with GAAP or the income tax basis of accounting (unless GAAP or another accounting method is required by Regulation AB (to the extent applicable) or otherwise required by Legal Requirements (to the extent applicable), and shall meet the requirements of Regulation AB and other applicable legal requirements. All financial statements referred to in this Section 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 statements (audited or unaudited) provided by Borrower under this Section shall be accompanied by an Officer’s Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (d).
(e) If requested by Lender, Borrower shall provide Lender, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall determine to be required pursuant to Regulation AB or any amendment, modification or replacement thereto or other legal requirements in connection with any Disclosure Document or any Exchange Act Filing or as shall otherwise be reasonably requested by Lender.
(f) In the Lenders or rating agencies event Lender determines, in connection with the rating of the Loans or the a Securitization, that the financial data and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact financial statements required to be stated therein, or necessary in order to make comply with Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the statements thereinprovisions of this Section, in light of the circumstances under which they were made, not misleadingLender may request, and Borrower shall promptly provide, such indemnity shall survive any transfer by the Lenders other financial data and financial statements as Lender determines to be necessary or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties appropriate for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilitiescompliance.
Appears in 1 contract
Samples: Loan Agreement (Clipper Realty Inc.)
Securitization. In addition Subject to any other assignment permitted pursuant Sections 11.7 hereof:
(a) Lender shall have the right (i) to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization. The transactions referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge of the Loans as collateral security for loans market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, including, without limitation and to the extent customary and reasonable as provided in this sentence, to:
(such asi) provide or cause Mortgage Borrower and/or Mezzanine A Borrower to provide (A) updated financial and other information reasonably available to Borrower with respect to the Property, for instancethe Collateral, collateralized loan obligations)the Mezzanine A Collateral, the business operated at the Property, Borrower, Mortgage Borrower, Mezzanine A Borrower, Guarantor, SPE Component Entity, Mortgage SPE Component Entity, Mezzanine A SPE Component Entity and Manager, (B) updated budgets relating to the Property, and (yC) 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 “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and acceptable to the Rating Agencies and (D) revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies;
(ii) to the extent such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the opinions were delivered to Lender Parties to effect the Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; closing of the Loan (provided any such opinion was not waived by Lender with respect to the Loan), provide updated opinions of counsel, which may be relied upon by Lender and its counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Collateral, the Mezzanine A Collateral, the Property, Property Documents, Borrower and Borrower’s Affiliates, Mezzanine A Borrower and Mezzanine A Borrower’s Affiliates, Mortgage Borrower and Mortgage Borrower’s Affiliates which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and shall be satisfactory in form and substance to the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents (which representations and warranties may be updated to reflect any change in facts and circumstances since the Closing Date, provided that (i) any such amendment or additional documentation does change in facts and circumstances is not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of due to a Default by Borrower under the Loan Documents); and
(iv) execute such amendments to the Loan Documents, the Mezzanine A Loan Document, the Mortgage Loan Documents, the Property Documents and Borrower’s, Mezzanine A Borrower’s, Mortgage Borrower’s, any Mortgage SPE Component Entity’s, any Mezzanine A SPE Component Entity’s or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies or rating agencies otherwise to effect any Secondary Market Transaction, including, without limitation, (A) amend and/or supplement the Independent Manager provisions provided herein and therein, in connection each case, in accordance with the rating applicable requirements of the Loans Rating Agencies, (B) bifurcating the Loan into two or more components and/or additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the Securitizationforegoing, a “Loan Bifurcation”) and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”C) to which modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Lender Parties Loan Documents, by up to ten (10) days; provided, however, that Borrower shall not be required to so modify or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in amend any Loan Document or organizational document if such modification or amendment shall impose a Secondary Market Adverse Change on the Borrower or Guarantor. The term “Secondary Market Adverse Change” means (i) either Borrower’s or Guarantor’s liabilities or obligations under the Loan Documents are increased, or Borrower’s or Guarantor’s rights under the Loan Documents are decreased, in either case in any writing delivered by or on behalf of any Loan Party to material respect (although change in the Lender Partiers weighted average interest rate described in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and clause (ii) agreeing below shall not be deemed to reimburse increase any such liability or decrease any such rights in any material respect), (ii) any change in the Lender Parties weighted average interest rate (whether before or after the time of the proposed Loan Bifurcation, Syndication or New Mezzanine Loan) (other than as a result of (x) payments and recoveries after an Event of Default and/or (y) application of proceeds following a Casualty or Condemnation), (iii) any change to the stated Maturity Date (other Securitization Parties for than as described in clause (C) above) and/or (iv) any legal or other expenses reasonably incurred by such Persons in connection with defending change that would affect the Securitization Liabilitiesamortization of the Loan.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Securitization. In addition to (a) Borrower acknowledges and agrees that Lender may, at its sole cost and expense other than as set forth in Section 11.1(g) hereof, (i) sell or otherwise transfer the Loan as a whole loan or sell or otherwise transfer or syndicate all or any other assignment permitted pursuant to this Sectionportion of the Loan and the Loan Documents, (ii) sell participation interests in the Loan Parties hereby acknowledge that or (xiii) consummate one or more private or public securitizations of rated or unrated single-class or multi-class securities (the Lenders, their Affiliates and Approved Funds (“Lender PartiesSecurities”) may sell secured by or securitize evidencing ownership interests in all or any portion of the Loans Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (the transactions referred to in clauses (i), (ii), and (iii) above are each herein referred to collectively as “Secondary Market Transactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”).
(b) through the pledge of the Loans as collateral security for loans If requested by Lxxxxx, Borrower shall assist Lender in satisfying customary market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans (such asmarketplace or by the Rating Agencies in connection with any Secondary Market Transactions, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by to:
(ai) amending this Agreement provide (A) updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, SPE Component Entity, Manager, the Management Agreements, the Property Documents, the Ground Leases, the PILOT Leases, the PILOT Documents and any Tenant, (B) updated budgets relating to the Property, (C) 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 “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies and (D) to the extent that the agreement or consent of any relevant third-parties can reasonably be obtained, as applicable, revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies; provided that Borrower shall not be required to provide additional information regarding the identity of any indirect investors in Borrower (or their respective Affiliates);
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Lxxxxx, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Property Documents, Borrower and Borrower’s Affiliates, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and satisfactory in form and substance to the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may require; and
(iv) execute such amendments to the Loan Documents, the Property Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) Bxxxxxxx’s or any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies or rating agencies otherwise to effect any Secondary Market Transaction, including, without limitation, (A) amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan into (I) one or more participations or (II) one or more component and/or additional separate notes and/or creating additional senior/subordinate note structure(s) and reallocating the principal amount of the Loan and the Spread among such components and/or notes evidencing the Loan (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that (I) the outstanding principal amount of such participations, loans, components and/or notes shall equal the outstanding principal amount of the Loan immediately prior to the creation thereof and (II) Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would require amortization of the Loan, change the weighted average Spread or the stated maturity (except as provided in subclause (C) above) (it being agreed that that the weighted average Spread may subsequently change as a result of (x) after a rated Securitization, any voluntary prepayment of the Loan in excess of the Free Prepayment Amount and (y) any applications to principal during the continuance of an Event of Default; provided, further, that (i) the Stated Maturity Date shall not be affected and the time periods during which Borrower is permitted to perform its obligations under the Loan Documents shall not be decreased; (ii) no such bifurcation or reallocation shall require any amortization of the Loan, (iii) there shall be no modification of the Loan Documents except to reflect the creation of such loans, participations, components or notes and the loan documents relating to such loans, components and/or notes shall be in substantially the form of the Loan Documents and (iv) neither Borrower nor Guarantor shall be required to enter into any amendment which increases Borrower’s or Guarantor’s liability under the Loan Documents in any material respect or decreases Borrower’s or Guarantor’s rights under the Loan Documents in any material respect. For avoidance of doubt, at all times the weighted average Interest Rate of all components of the Loan shall equal the weighted average Interest Rate at Closing; provided, however, that the weighted average Interest Rate may subsequently change as a result of (x) after a rated Securitization, any prepayment of the Loan in excess of the Free Prepayment Amount and (y) any applications to principal during the continuance of an Event of Default.
(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 collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request (without duplication and to the extent not previously provided) (i) the selected financial data 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 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 rating preparation of the Loans or Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (cC) providing 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 certificate filing pursuant to the Exchange Act in connection with or relating to the Securitization (ian “Exchange Act Filing”) agreeing is not required. If requested by Lxxxxx, Borrower shall furnish to indemnify Lender financial data and/or financial statements for any tenant of the Property (in Borrower’s possession or control and permitted to be disclosed) if, in connection with a Securitization, Lender Partiesexpects 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.
(d) All financial data and statements provided by Borrower hereunder 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 this Section shall be audited by Deloitte, Ernst & Young, RSM McGladrey, Bxxxx Nxxxxx Nxxxx, PwC or other independent certified public accountant reasonably approved by 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 statements (audited or unaudited) provided by Borrower under this Section shall be accompanied by an Officer’s Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (d).
(e) If requested by Lxxxxx, Borrower shall provide Lender, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall determine to be required pursuant to Regulation AB or any party providing credit support amendment, modification or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages replacement thereto or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers other legal requirements in connection with any Loan Disclosure Document or arise out of any Exchange Act Filing or are based upon as shall otherwise be reasonably requested by Lender, in each case, to the omission or alleged omission extent reasonably available to state therein Borrower.
(f) In the event Lender determines, in connection with a material fact Securitization, that the financial data and financial statements required to be stated therein, or necessary in order to make 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 this Section, Lender may request, and Borrower shall promptly provide, such other financial data and financial statements thereinas Lender determines to be necessary or appropriate for such compliance, in light of each case, to the circumstances under which they were made, not misleading, extent reasonably available to Borrower.
(g) All reasonable out-of-pocket third-party costs and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons Bxxxxxxx and Guarantor in connection with defending Borrower’s compliance with requests made under this Article 11 (including any documentary stamp, intangible or other mortgage taxes) and any fees and expenses of the Rating Agencies incurred in connection with a syndication and/or Securitization Liabilitiesof the Loan shall be paid by Borrower, including any AUP costs incurred before or after the Closing Date. In addition, Borrower and Guarantor shall be responsible for the payment of all of Borrower’s and Guarantor’s respective attorneys’ fees and expenses with respect to requests made pursuant to Section 11.1, Section 11.2, and Section 11.6.
Appears in 1 contract
Samples: Loan Agreement (Industrial Logistics Properties Trust)
Securitization. In addition Subject to any other assignment permitted pursuant Sections 11.7 and 18.14 hereof:
(a) Administrative Agent shall have the right (i) to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization. The transactions referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Administrative Agent, Borrower shall assist Administrative Agent in satisfying the pledge of the Loans as collateral security for loans market standards to a Lender Party which Administrative Agent customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, including, without limitation and to the extent customary and reasonable as provided in this sentence, to:
(such asi) provide (A) updated financial and other information reasonably available to Borrower with respect to the Property, for instancethe business operated at the Property, collateralized loan obligations)Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Guarantor, SPE Component Entity, Mezzanine A SPE Component Entity, Mezzanine B SPE Component Entity and Manager, (B) updated budgets relating to the Property, and (yC) 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 “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Administrative Agent and acceptable to the Rating Agencies and (D) revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Administrative Agent and acceptable to the Rating Agencies;
(ii) to the extent such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the opinions were delivered to Lender Parties to effect the Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; closing of the Loan (provided any such opinion was not waived by Administrative Agent with respect to the Loan), provide updated opinions of counsel, which may be relied upon by Administrative Agent, Lenders and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Property Documents, Borrower and Borrower’s Affiliates, which counsel and opinions shall be reasonably satisfactory in form and substance to Administrative Agent and shall be satisfactory in form and substance to the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents (which representations and warranties may be updated to reflect any change in facts and circumstances since the Closing Date, provided that (i) any such amendment or additional documentation does change in facts and circumstances is not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of due to a Default by Borrower under the Loan Documents); and
(iv) execute such amendments to the Loan Documents, the Property Documents and Borrower’s or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information any SPE Component Entity’s organizational documents as may be reasonably requested by Administrative Agent or requested by the Lenders Rating Agencies or rating agencies otherwise to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Manager provisions provided herein and therein, in connection each case, in accordance with the rating applicable requirements of the Loans Rating Agencies, (B) bifurcating the Loan into two or more components and/or additional separate notes, re-allocating the SecuritizationLoan among existing components, reducing the number of components of the Loan, and/or creating additional separate notes and/or creating additional senior/subordinate note structure(s), including, without limitation, re-allocating the principal amounts and the LIBOR Spread, Alternate Rate Spread, and/or Prime Rate Spread (any of the foregoing, a “Loan Bifurcation”) and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”C) to which modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Lender Parties Loan Documents, by up to ten (10) days; provided, however, that Borrower shall not be required to so modify or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in amend any Loan Document or organizational document if such modification or amendment shall impose a Secondary Market Adverse Change on the Borrower or Guarantor. The term “Secondary Market Adverse Change” means (i) either Borrower’s or Guarantor’s liabilities or obligations under the Loan Documents are increased, or Borrower’s or Guarantor’s rights under the Loan Documents are decreased, in either case in any writing delivered by or on behalf of any Loan Party to material respect (although change in the Lender Partiers weighted average interest rate described in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and clause (ii) agreeing below shall not be deemed to reimburse increase any such liability or decrease any such rights in any material respect), (ii) any change in the Lender Parties weighted average interest rate (whether before or after the time of the proposed Loan Bifurcation or New Mezzanine Loan) (other than as a result of (x) payments and recoveries after an Event of Default and/or (y) application of proceeds following a Casualty or Condemnation), (iii) any change to the stated Maturity Date (other Securitization Parties for than as described in clause (C) above) and/or (iv) any legal or other expenses reasonably incurred by such Persons in connection with defending change that would affect the Securitization Liabilitiesamortization of the Loan.
Appears in 1 contract
Samples: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Securitization. In addition Subject to any other assignment permitted pursuant Sections 11.7 hereof:
(a) Lender shall have the right (i) to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization. The transactions referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge of the Loans as collateral security for loans market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, including, without limitation and to the extent customary and reasonable as provided in this sentence, to:
(such asi) provide or cause Mortgage Borrower to provide (A) updated financial and other information reasonably available to Borrower with respect to the Property, for instancethe Collateral, collateralized loan obligations)the business operated at the Property, Borrower, Mortgage Borrower, Mezzanine B Borrower, Guarantor, SPE Component Entity, Mortgage SPE Component Entity, Mezzanine B SPE Component Entity and Manager, (B) updated budgets relating to the Property, and (yC) 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 “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and acceptable to the Rating Agencies and (D) revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies;
(ii) to the extent such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the opinions were delivered to Lender Parties to effect the Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; closing of the Loan (provided any such opinion was not waived by Lender with respect to the Loan), provide updated opinions of counsel, which may be relied upon by Lender and its counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Collateral, the Property, Property Documents, Borrower and Borrower’s Affiliates, Mortgage Borrower and Mortgage Borrower’s Affiliates which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and shall be satisfactory in form and substance to the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents (which representations and warranties may be updated to reflect any change in facts and circumstances since the Closing Date, provided that (i) any such amendment or additional documentation does change in facts and circumstances is not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of due to a Default by Borrower under the Loan Documents); and
(iv) execute such amendments to the Loan Documents, the Mortgage Loan Documents, the Property Documents and Borrower’s, Mortgage Borrower’s, any Mortgage SPE Component Entity’s or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies or rating agencies otherwise to effect any Secondary Market Transaction, including, without limitation, (A) amend and/or supplement the Independent Manager provisions provided herein and therein, in connection each case, in accordance with the rating applicable requirements of the Loans Rating Agencies, (B) bifurcating the Loan into two or more components and/or additional separate notes, re-allocated the SecuritizationLoan among existing components, reducing the number of components of the Loan and/or creating additional separate notes and/or creating additional senior/subordinate note structure(s), including, without limitation, re-allocated the principal amounts and the LIBOR Spread, Alternate Rate Spread and/or Prime Rate Spread (any of the foregoing, a “Loan Bifurcation”) and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”C) to which modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Lender Parties Loan Documents, by up to ten (10) days; provided, however, that Borrower shall not be required to so modify or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in amend any Loan Document or organizational document if such modification or amendment shall impose a Secondary Market Adverse Change on the Borrower or Guarantor. The term “Secondary Market Adverse Change” means (i) either Borrower’s or Guarantor’s liabilities or obligations under the Loan Documents are increased, or Borrower’s or Guarantor’s rights under the Loan Documents are decreased, in either case in any writing delivered by or on behalf of any Loan Party to material respect (although change in the Lender Partiers weighted average interest rate described in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and clause (ii) agreeing below shall not be deemed to reimburse increase any such liability or decrease any such rights in any material respect), (ii) any change in the Lender Parties weighted average interest rate (whether before or after the time of the proposed Loan Bifurcation, Syndication or New Mezzanine Loan) (other than as a result of (x) payments and recoveries after an Event of Default and/or (y) application of proceeds following a Casualty or Condemnation), (iii) any change to the stated Maturity Date (other Securitization Parties for than as described in clause (C) above) and/or (iv) any legal or other expenses reasonably incurred by such Persons in connection with defending change that would affect the Securitization Liabilitiesamortization of the Loan.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan or (iii) to securitize the Loans Loan or any portion thereof in a single asset securitization or a pooled loan securitization. The transaction referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, at Borrower’s cost and expense (such expense not to exceed $5,000 in the aggregate during the term of the Loans Loan), 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, Sponsor and Manager, (B) provide updated budgets 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 “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as collateral security for loans to a matters of Delaware and federal bankruptcy law relating to limited liability companies or any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property and Borrower and Borrower’s Affiliates, which counsel and opinions shall be satisfactory in form and substance to Lender Party or and the assignment or issuance Rating Agencies;
(iii) provide updated, as of direct or indirect interests the closing date of the Secondary Market Transaction, representations and warranties made in the Loans Loan Documents and such additional representations and warranties as the Rating Agencies may require; and
(iv) execute such as, for instance, collateralized loan obligations), amendments to the Loan Documents and (y) such Securitization Borrower’s or any SPE Component Entity’s organizational documents as may be rated reasonably requested by a rating agency. The Loan Parties shall reasonably cooperate with Lender or requested by the Lender Parties Rating Agencies or otherwise to effect the Securitization including, without limitation, by bifurcation of the Loan into two or more components and/or separate notes and/or creating a senior/subordinate note structure (a) amending this Agreement and any of the other foregoing, a “Loan DocumentsBifurcation”); provided, and executing however, that Borrower shall not be required to modify or amend any Loan Document if such additional documentsmodification or amendment would change the interest rate, as reasonably requested by the Lenders stated maturity or the amortization of principal set forth in the Note, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the Securitization; provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms same initial weighted average coupon of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and original Note.
(c) providing a certificate Upon request, Borrower shall furnish to Lender from time to time such financial data and financial statements as Lender determines to be necessary, advisable or appropriate for complying with any Applicable Law (i) agreeing including those applicable to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the SecuritizationServicer (including, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party without limitation and to the Lender Partiers in connection with any Loan Document extent applicable, Regulation AB)) within the timeframes necessary, advisable or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary appropriate in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and comply with such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization LiabilitiesApplicable Law.
Appears in 1 contract
Securitization. In addition to any other assignment permitted pursuant to this SectionBorrower hereby acknowledges that Lender, Loan Parties hereby acknowledge that (x) the Lendersits successors or assigns, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans Loan or portions thereof in one or more transactions (each, a “"Securitization”) through "; and collectively, the pledge of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations"Securitizations"), and (y) such Securitization may be rated by a rating agency. The Loan Parties Borrower agrees that it shall reasonably cooperate with Lender and use Borrower's best efforts to facilitate the Lender Parties to effect the consummation of each Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; provided that by: (i) any such amendment or additional documentation does not impose material additional costs on Borrower promptly and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) reasonably providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating sale of the Loans Loan (or portion thereof), the preparation of a private placement memorandum, prospectus or a registration statement required to privately place or publicly distribute the securities in a manner which does not conflict with federal or state securities laws; (ii) providing in connection with each of (a) a preliminary and a private placement memorandum or (b) a preliminary and final prospectus, as applicable, an indemnification certificate (x) certifying that Borrower has carefully examined such private placement memorandum, prospectus or registration statement, as applicable, including, without limitation, the sections entitled "Special Considerations", "Description of the Mortgage Loan", "The Underlying Mortgaged Properties", "The Manager", "Borrower" and "Certain Legal Aspects of the Mortgage Loan", and such sections (and any other sections requested) insofar as they relate to Borrower, its Affiliates, the Loan or the SecuritizationFacilities do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; provided, however, that Borrower shall not be required to indemnify any Indemnified Party for any losses relating to untrue statements or omissions which Borrower identified to Lender in writing at the time of Borrower's examination of such memorandum or prospectus, as applicable, and (cy) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectivelyindemnifying each Indemnified Party, the “Securitization Parties”) Issuer and the Advisor for any losses, claims, damages damages, costs, expenses or liabilities (including, without limitation, all liabilities under all applicable federal and state securities laws) (collectively, the “Securitization "Liabilities”") to which the Lender Parties or such Securitization Parties any of them may become subject (i) insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact relating to Borrower, its Affiliates, the Loan, the Facilities, any Operator, the Manager or any aspect of the subject financing or the parties directly involved therein contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document such sections or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated thereinin such sections or necessary in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading or (ii) as a result of any untrue statement of material fact in any of the financial statements of Borrower incorporated into any placement memorandum, prospectus, registration statement or other document connected with the issuance of securities or the failure to include in such financial statements or in any placement memorandum, prospectus, registration statement or other document connected with the issuance of securities any material fact relating to Borrower, its Affiliates, the Facilities, any Operator, the Loan, the Manager and any aspect of the subject financing necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, and however, that Borrower shall not be required to indemnify any Indemnified Party for any losses relating to untrue statements or omissions which Borrower identified to Lender in writing at the time of Borrower's examination of such indemnity shall survive any transfer by the Lenders memorandum or their successors or assigns of the Loansprospectus, as applicable, and (iiz) agreeing to reimburse Lender, the Lender Parties Issuer and the other Securitization Parties Advisor for any legal or other expenses reasonably incurred by such Persons Lender, the Issuer and the Advisor in connection with investigating or defending the Securitization Liabilities; (iv) causing to be rendered such customary opinion letters as shall be requested by the Rating Agencies for other securitizations having or seeking ratings comparable to that then being sought for the relevant Securitization; (v) making such representations, warranties and covenants, as may be reasonably requested by the Rating Agencies and comparable to those required in other securitized transactions having or seeking the same rating as is then being sought for the Securitization; (vi) providing such information regarding the Collateral as may be reasonably requested by the Rating Agencies or otherwise required in connection with the formation of a REMIC; and (vii) providing any other information and materials reasonably required in the Securitization. Borrower acknowledges and agrees that the Lender may, at any time on or after the Closing Date, assign its duties, rights or obligations hereunder or under any Loan Document in whole, or in part, to a servicer and/or a trustee in Lender's discretion. Nothing herein shall in any way limit Lender's right to sell all or a portion of the Loan in a transaction which is not a Securitization.
Appears in 1 contract
Securitization. In addition (a) Lender shall have the right, at Lender’s expense except as otherwise expressly provided herein, (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan or (iii) to securitize the Loans Loan or any portion thereof in a single asset securitization or a pooled loan securitization. The transaction referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, 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, Sponsor, Master Lessee and Manager, (B) provide updated budgets 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 Loans Property (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel acceptable the Rating Agencies and reasonably acceptable to Lender;
(ii) provide opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as collateral security for loans to a non-consolidation, matters of Delaware (or Maryland, as applicable) and federal bankruptcy law relating to limited liability companies or any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Master Lessee, and Borrower and Borrower’s Affiliates, which counsel and opinions shall be satisfactory in form and substance to Lender Party or and the assignment or issuance Rating Agencies;
(iii) provide updated, as of direct or indirect interests the closing date of the Secondary Market Transaction, representations and warranties made in the Loans Loan Documents and such additional representations and warranties as the Rating Agencies may require; and
(iv) execute such asamendments to the Loan Documents and Borrower, for instance, collateralized loan obligations), and (y) such Securitization Master Lessee or any SPE Component Entity’s organizational documents as may be rated reasonably requested by a rating agency. The Loan Parties shall reasonably cooperate with Lender or requested by the Lender Parties Rating Agencies 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 (any of the foregoing, a “Loan Bifurcation”); 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 set forth in the Note, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the same initial weighted average coupon of the original Note, (B) decrease the time periods during which Borrower is permitted to perform its obligations under the Loan Documents, or (C) modify any other material economic term of the Loan.
(c) Upon request, Borrower shall furnish (or cause to be furnished) to Lender from time to time such financial data and financial statements as Lender determines to be necessary, advisable or appropriate for complying with any Applicable Law (including those applicable to Lender or any Servicer (including, without limitation and to the extent applicable, Regulation AB)) within the timeframes necessary, advisable or appropriate in order to comply with such Applicable Law.
(d) All reasonable out of pocket costs and expenses incurred by (a) amending Borrower and Guarantor in connection with Borrower’s complying with requests made under this Section 11.1 shall be paid by Lender, except to the extent Borrower or Guarantor are otherwise obligated to provide any requested information pursuant to the express provisions of any other Article of this Agreement and or the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilities.
Appears in 1 contract
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization. The transactions referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge of the Loans as collateral security for loans market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans (such asmarketplace or by the Rating Agencies in connection with any Secondary Market Transactions, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, to:
(i) provide (A) updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, Sponsor, SPE Component Entity and Manager which are available using currently in place systems of the aforesaid parties, (B) updated budgets relating to the Property, (C) 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 “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies and (D) revisions to and other agreements with respect to the Property Documents in form and substance acceptable to Lender and the Rating Agencies;
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Property Documents, Borrower and Borrower’s Affiliates, which counsel and opinions shall be satisfactory in form and substance to Lender and the Rating Agencies;
(aiii) amending this Agreement provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may require (provided, however, that (without limiting any other provisions hereof or of the other Loan Documents, and executing ) Borrower’s inability to make any such additional documents, as reasonably requested by the Lenders representation or warranty without qualification shall not in connection with the Securitizationand of itself constitute an Event of Default hereunder); provided that and
(iiv) any execute such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under amendments to the Loan Documents, the Property Documents and Borrower’s or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies or rating agencies otherwise to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein (including, without limitation, to add an additional Independent Director), in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan into two or more components and/or additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would (I) change the interest rate, the stated maturity (except as provided in subclause (C) above) or the amortization of principal set forth herein, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the same weighted average coupon of the original Note and provide for the same aggregate interest payments over the life of the Loan (except that such weighted average coupon and such aggregate interest payments may increase solely as a result of interest rate “creep” following any prepayment of the Loan during the continuance of an Event of Default or in connection with a prepayment of the Loan as a result of a Casualty or Condemnation), (II) change the aggregate outstanding principal balance of the Loan, (III) materially and adversely alter the material restrictions on equity transfers in Borrower or transfers of the Property, in each case, as set forth in this Agreement, (IV) materially and adversely alter any material limitations on recourse against Borrower or Guarantor contained herein, or (V) except as provided above, materially and adversely change any material obligation, material right or material privilege of Borrower or Guarantor set forth in the Loan Documents (except, in the case of each of the foregoing, to the extent the same would have been affected had the Loan Bifurcation existed as of the Closing Date based on the differences in being a party to a bifurcated loan as opposed to a non-bifurcated loan). Notwithstanding anything herein to the contrary and except as otherwise provided in the immediately succeeding sentence, with respect to any compliance by any Borrower Party with requests made pursuant to this Section 11.1(b) with respect to any Secondary Market Transaction, (i) Lender shall pay its owns costs and expenses in connection therewith (including, without limitation, attorneys’ fees and expenses), (ii) Borrower shall pay all of Lender’s reasonable, out-of-pocket costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) solely in connection with the rating Excluded Items and (iii) Lender shall reimburse Borrower for any reasonable, out-of-pocket, third party costs incurred by Borrower prior to the consummation of the Loans or corresponding Secondary Market Transaction in Borrower’s complying with requests made pursuant to this Section 11.1(b) (exclusive of the Securitization, and Excluded Items).
(c) providing a certificate Upon request, Borrower shall furnish to Lender from time to time such financial data and financial statements as Lender determines to be necessary, advisable or appropriate for complying with any applicable legal requirements (i) agreeing including those applicable to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the SecuritizationServicer (including, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party without limitation and to the Lender Partiers in connection with any Loan Document extent applicable, Regulation AB)) within the timeframes necessary, advisable or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary appropriate in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and comply with such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilitiesrequirements.
Appears in 1 contract
Samples: Loan Agreement (Lightstone Value Plus Real Estate Investment Trust III, Inc.)
Securitization. In addition to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge (a) Borrower understands that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) through the pledge certain of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization Provided Information may be rated by a rating agency. The Loan Parties shall reasonably cooperate included in disclosure documents in connection with the Lender Parties to effect the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act or the Exchange Act, or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects.
(ab) amending this Agreement Borrower agrees to provide, and to cause Mortgage Borrower and Guarantor to provide, in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification certificate (A) certifying that Borrower and Guarantor have carefully examined such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan), as applicable, including without limitation, the sections entitled “Special Considerations,” and/or “Risk Factors,” and “Certain Legal Aspects of the Mezzanine Loan,” or similar sections, and all sections relating to Borrower, Mortgage Borrower, Guarantor, Manager, their Affiliates, the Loan, the Loan Documents, the Collateral and executing the Properties, and any risks or special considerations relating thereto, and that, to the best of Borrower’s knowledge, such additional documentssections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (B) certifying that Mortgage Borrower and Guarantor have carefully examined such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan), as applicable, including without limitation, the sections entitled “Special Considerations,” and/or “Risk Factors,” and “Certain Legal Aspects of the Mortgage Loan,” or similar sections, and all sections relating to Borrower, Mortgage Borrower, Guarantor, Manager, their Affiliates, the Loan, the Loan Documents and the Properties, and any risks or special considerations relating thereto, and that, to the best of Borrower’s knowledge, such sections (and any other sections reasonably requested by requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the Lenders statements made, in connection with the Securitization; provided light of the circumstances under which they were made, not misleading, (C) indemnifying Lender (and for purposes of this Section 13.5, Lender hereunder shall include its officers and directors) and the Affiliate of Lender that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and has filed the registration statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect Person described in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify or (ii), an “Issuer Person”), and each director and officer of any Issuer Person, and each Person or entity who controls any Issuer Person within the Lender Parties, meaning of Section 15 of the Securities Act or any party providing credit support or otherwise participating in Section 20 of the Securitization, including any investors in a securitization entity Exchange Act (collectively, the “Securitization PartiesIssuer Group”), and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any such Person within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) Losses to which Lender, the Lender Parties Issuer Group or such Securitization Parties the Underwriter Group may become subject insofar as the Securitization Liabilities Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections (including any Loan Document Investor or in any writing delivered by Rating Agency “term sheets” or on behalf of any Loan Party presentations relating to the Lender Partiers in connection with any Loan Document Collateral, Properties and/or the Loan) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated thereinin such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Collateral, Properties and/or the Loan) or necessary in order to make the statements thereinin such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Collateral, Properties and/or the Loan) or in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by misleading (collectively the Lenders or their successors or assigns of the Loans, “Securities Liabilities”) and (iiD) agreeing to reimburse Lender, the Lender Parties Issuer Group and the other Securitization Parties Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such Persons case under clauses (C) or (D) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender or any member of the Issuer Group or Underwriter Group by or on behalf of Borrower, Mortgage Borrower or Guarantor in connection with the preparation of the memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Collateral, Properties and/or the Loan) or in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower, Mortgage Borrower or Guarantor, operating statements, rent rolls, environmental site assessment reports and property condition reports with respect to the Properties. This indemnity agreement will be in addition to any liability which Borrower, Mortgage Borrower and Guarantor may otherwise have. Moreover, the indemnification provided for in clauses (C) and (D) above shall be effective whether or not an indemnification certificate described in clauses (A) and (B) above is provided and shall be applicable based on information previously provided by Borrower, Mortgage Borrower and Guarantor or their Affiliates if Borrower, Mortgage Borrower or Guarantor do not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower agrees to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon an untrue statement in the Provided Information or the omission or alleged omission to state in the Provided Information a material fact required to be stated in the Provided Information in order to make the statements in the Provided Information, in light of the circumstances under which they were made not misleading and (ii) reimburse Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, the Issuer Group or the Underwriter Group in connection with defending or investigating the Securitization Securities Liabilities.
(d) Promptly after receipt by an indemnified party under this Section 13.5 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 13.5, notify the indemnifying party in writing of the commencement thereof, but the omission to so notify the indemnifying party will not relieve the indemnifying party from any liability which the indemnifying party may have to any indemnified party hereunder except to the extent that failure to notify causes prejudice to the indemnifying party. In the event that any action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it (or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. After notice from the indemnifying party to such indemnified party under this Section 13.5 the indemnifying party shall be responsible for any reasonable legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. The indemnifying party shall not be liable for the expenses of more than one such separate counsel unless an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another indemnified party.
(e) In order to provide for just and equitable contribution in circumstances in which the indemnity agreements provided for in Section 13.5(c) or Section 13.5(d) is or are for any reason held to be unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which would otherwise be indemnifiable under Section 13.5(c) or Section 13.5(d), the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages or liabilities (or action in respect thereof); provided, however, that no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s, Borrower’s and Guarantor’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation.
Appears in 1 contract
Samples: Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Securitization. In addition to any other assignment permitted pursuant to this SectionAgreement, Loan Parties Borrowers hereby acknowledge that each Lender (x) the Lenders, their Affiliates and Approved Funds (a “Lender PartiesSecuritizing Lender”) may sell or may, at such Lender’s sole cost and expense, including reasonable fees of Lender’s and Borrowers’ respective counsel to review related amendments, securitize the Loans (a “Securitization”) through the pledge of the its Loans as collateral security for loans to a such Securitizing Lender Party or its Affiliates or Related Funds or through the sale of the Loans or the assignment or issuance of direct or indirect interests in the Loans (its Loans, which loans to such as, for instance, collateralized loan obligations), and (y) such Securitization may Securitizing Lender or its Affiliates or Related Funds or direct or indirect interests will be rated by Xxxxx’x, S&P or one or more other rating agencies; provided that no Confidential Information (as defined below) may be disclosed to any Person in connection with any Securitization unless such Person has expressly agreed in writing to maintain the confidentiality of the Confidential Information subject to the disclosures permitted under Section 18.12. Notwithstanding anything contained in this Agreement to the contrary, expenses in connection with a rating agencySecuritization incurred by each Lender conducting a Securitization shall not constitute Lender Group Expenses. The Loan Parties shall reasonably cooperate with the each Securitizing Lender Parties to effect the a Securitization including, without limitation, including by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or the applicable rating agencies in connection with the rating of the Loans or the SecuritizationSecuritizing Lender, its Affiliates and (c) providing a certificate (i) agreeing to indemnify the Lender PartiesRelated Funds, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties Securitizing Lender, its Affiliates and Related Funds or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers Group in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties Securitizing Lender, its Affiliates and Related Funds and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilities.
Appears in 1 contract
Samples: Loan Agreement (Towerstream Corp)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled loan securitization. The transaction referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge of the Loans as collateral security for loans market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans (such asmarketplace or by the Rating Agencies in connection with any Secondary Market Transactions, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by to:
(ai) amending this Agreement provide (A) updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Guarantor, Sponsor, SPE Component Entity and Manager, (B) updated budgets relating to the Properties, (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 Properties (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies and (D) revisions to and other Loan Documents, agreements with respect to the Property Documents in form and executing such additional documents, as reasonably requested by substance acceptable to Lender and the Lenders Rating Agencies;
(ii) provide opinions of counsel (or updates or modifications of existing opinions delivered to Lender in connection with the Securitization; provided that (i) Original Loan Advance or the Additional Loan Advance), which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives or any such amendment other opinion customary in Secondary Market Transactions or additional documentation does not impose material additional costs on required by the Rating Agencies with respect to any Individual Property, any Borrower and any Affiliates of Borrower, which counsel and opinions shall be satisfactory in form and substance to Lender and the Rating Agencies.
(iiiii) any such amendment or additional documentation does not materially adversely affect provide updated, as of the rightsclosing date of the Secondary Market Transaction, or materially increase the obligations, of Borrower under representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may require;
(iv) execute such amendments to the Loan Documents, the Property Documents and Borrower’s or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies or rating agencies otherwise to effect any Secondary Market Transaction including, without limitation, (A) amending the applicable terms hereof and of the organizational documents of Borrower and any SPE Component Entity to provide for a non-economic “golden member” and/or “independent director” provisions, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating of the Loan into two or more components and/or additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; 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 stated maturity (except as provided in subclause (C) above) or the amortization of principal set forth herein, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the same initial weighted average coupon of the original Note, or which does not otherwise increase Borrower’s obligations hereunder; and
(v) deliver such additional tenant estoppel letters, estoppel letters relating to reciprocal easement agreements, declarations of covenants, conditions and restrictions or other similar agreements, subordination agreements or other agreements from parties to agreements that affect the Property, which estoppel letters, subordination agreements or other agreements shall be satisfactory to Lender and the Rating Agencies. Borrower shall not be in default hereunder if Borrower is unable to deliver any estoppel letters from a third party pursuant to this subsection (v) for so long as Borrower uses commercially reasonable efforts to deliver said estoppel letter. Except as provided in the immediately succeeding sentence, Borrower shall not be obligated to incur any material cost or expense in connection with complying any Lender request made under this Section 11.1(b) and Lender shall reimburse Borrower for any of Borrower’s attorneys’ fees which have been approved by Lender in writing (which approval shall not be unreasonably withheld, delayed or conditioned). Notwithstanding the foregoing, nothing in this subsection (b), however, shall be deemed to require Lender to pay or reimburse Borrower for any costs and expenses which are otherwise the responsibility of Borrower pursuant to the terms of the Loan Documents irrespective of the terms and conditions of this subsection (b).
(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 collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon written request (i) the selected financial data 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 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 rating preparation of the Loans or Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (cC) providing 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 certificate filing pursuant to the Exchange Act in connection with or relating to the Securitization (ian “Exchange Act Filing”) agreeing is not required. If requested by Lender, Borrower shall furnish to indemnify Lender financial data and/or financial statements for any tenant of any Individual 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.
(d) All financial data and statements provided by Borrower hereunder shall be prepared in accordance with GAAP or such other Approved Accounting Method, and shall meet the requirements of Regulation AB and other applicable legal requirements. All financial statements referred to in this Section shall be audited by independent accountants of Borrower reasonably acceptable to Lender Partiesin 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 statements (audited or unaudited) provided by Borrower under this Section shall be accompanied by an Officer’s Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (d).
(e) If requested by Lender, Borrower shall provide Lender, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall determine to be required pursuant to Regulation AB or any party providing credit support amendment, modification or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages replacement thereto or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers other legal requirements in connection with any Loan Disclosure Document or arise out of any Exchange Act Filing or are based upon as shall otherwise be reasonably requested by Lender.
(f) In the omission or alleged omission to state therein event Lender determines, in connection with a material fact Securitization, that the financial data and financial statements required to be stated therein, or necessary in order to make comply with Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the statements thereinprovisions of this Section, in light of the circumstances under which they were made, not misleadingLender may request, and Borrower shall promptly provide, such indemnity shall survive any transfer by the Lenders other financial data and financial statements as Lender determines to be reasonably necessary or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties appropriate for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilitiescompliance.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital Trust III, Inc.)
Securitization. In addition to Borrower acknowledges and agrees that Lender shall have the absolute and unconditional right at any time after the date hereof and at any time during the term of the Loan without requiring any consent or approval from Borrower, any Loan Party or any other assignment permitted pursuant person guaranteeing the payment of the Debt or any other Person associated with or connected with the Loan or the Collateral to this Sectionsell, assign, pledge, hypothecate or otherwise transfer Lender’s interest in the Loan Parties hereby acknowledge that (x) in whole or in part, or to place one or more participation interests therein in one or more separate transactions, or to effect a syndication or securitization of the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell Loan in one or securitize the Loans more transactions (a “Securitization”) through the pledge of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and in each case to or with such Persons (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, domestic or foreign banks, insurance companies, pension funds, trusts, other institutional lenders or investors, natural persons, grantor trusts, owner trusts, special purpose corporations, REMICs, FASITs, real estate investment trusts or other similar or comparable investment vehicles) (collectively or individually, “Investor”) and on such terms and conditions as Lender shall deem to be appropriate in the exercise of its sole and absolute discretion. In connection with any such sale, assignment, participation, syndication or securitization, Lender shall have the absolute and unconditional right without obtaining the prior consent or approval of any Loan Party or any other Person guaranteeing the payment of the Debt or any other Person associated or connected with the Loan or the Collateral (including the Property Owner) to disclose, deliver and to share with any prospective purchaser of the Loan or of any securities or of any participation or other interest therein (including any such interest to be acquired in connection with a syndication or securitization of the Loan), or with any prospective Rating Agency, or their respective counsel or representatives, such information (financial or otherwise), documents and instruments pertaining to the Loan or any other person, party or entity associated or connected with the Loan or the Collateral (collectively, the “Disclosure Material and Information”) as Lender shall deem to be appropriate in the exercise of its sole and absolute discretion. Borrower shall cooperate, and shall cause each Loan Party and each other Person, associated or connected with the Loan or the Collateral to cooperate, in all reasonable respects with Lender in connection with any sale, assignment, participation, syndication or securitization of the Loan or any interest therein by Lender pursuant to the provisions of this paragraph but at no out-of-pocket cost to Borrower. Without in any manner implying the necessity therefor, Borrower grants to Lender, and shall cause each Loan Party and each other Person associated or connected with the Loan or the Collateral to specifically grant to Lender, the right to distribute any and all of the Disclosure Material and Information in connection with any sale, assignment, participation, syndication or securitization of the Loan or of any interest therein by Lender pursuant to the provisions of this paragraph. Borrower shall execute and deliver, and shall cause each Loan Party and each other Person associated or connected with the Loan or the Collateral to execute and deliver, such documents and instruments as may be reasonably necessary to (a) amending this Agreement split the Loan into two or more loans evidenced by and pursuant to separate sets of notes and other related loan documents, or (b) to modify the other terms and provisions of the Loan Documents, and executing such additional documentsin each case to the full extent required by Lender to facilitate any sale, as reasonably requested assignment, pledging, hypothecation, participation, syndication or securitization of the Loan or any interest therein by Lender pursuant to the Lenders in connection with the Securitization; provided provisions of this paragraph, it being agreed that (i) any such amendment splitting or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does modification of the Loan will not materially adversely affect or diminish the rights, rights of any Loan Party as presently set forth in the Loan Documents and will not increase the monetary obligations and liabilities or materially increase the obligations, non-monetary obligations of Borrower Loan Party under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the LoansDocuments, and (ii) agreeing if the Loan is split, the retained interest of Lender, if any, in the Loan shall be allocated to reimburse or among one or more of such separate loans in a manner specified by Lender in its sole and absolute discretion. If Borrower shall default in the performance of its obligation as set forth in this paragraph, and if such default shall not be remedied by Borrower within fifteen (15) days after notice by Lender, Lender Parties shall have the absolute and unconditional right in its sole and absolute discretion to declare such default an Event of Default under this Agreement. Lender shall endeavor to provide notice to Borrower of any such assignment, sale, participation, syndication or securitization of the other Securitization Parties for Loan in a reasonably timely manner, but any legal failure by Lender to provide notice to Borrower shall not give rise to any claim or other expenses reasonably incurred defense on the part of any of the Loan Parties, or limit the rights of Lender under this Section 15.19 or the Loan Documents. Until otherwise directed in writing by Lender following the occurrence of any such Persons in connection with defending the Securitization Liabilitiesassignment, sale, participation, syndication or securitization, Borrower shall continue to deliver all payments and deposits as required prior to such occurrence.
Appears in 1 contract
Securitization. In addition A material inducement to any FFCA's closing of the transaction contemplated by this Agreement is the ability of FFCA to complete an investment grade rated securitized financing with respect to the Notes and the Equipment Notes through a real estate mortgage investment conduit ("REMIC") or other assignment permitted pursuant asset securitization vehicle selected by FFCA (the "Securitization"), in accordance with all requirements which may be imposed by the investors or the rating agencies involved in such Securitization, as selected by FFCA, or which may be imposed by applicable securities, tax or other laws or regulations, including, without limitation, laws which deal with FFCA's status as a real estate investment trust or a qualified subsidiary of a real estate investment trust. Debtor agrees, and will cause Arby's and Guarantor, to this Sectioncooperate in good faith with FFCA in (i) providing such documents, Loan Parties hereby acknowledge financial and other data, and other information and materials which would typically be required of Arby's, Guarantor, Debtor or FFCA, or which are specifically required in connection with the Securitization, by the investors or selected rating agencies as it relates to the completion of the Securitization; provided, however, that (x) the Lendersobligation of Debtor, their Affiliates Arby's and Approved Funds (“Lender Parties”) may sell or securitize Guarantor to deliver at FFCA's request such documents, information and materials to third-parties shall be conditioned upon the Loans (execution and delivery by the recipient thereof of a “Securitization”) through the pledge of the Loans Confidentiality Agreement, except as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests otherwise provided in the Loans (such as, for instance, collateralized loan obligations)this Section, and (y) to the extent the Loan Documents stipulate time periods for the delivery of information of the nature requested by FFCA, Arby's, RC/Arby's and Guarantor shall not be required to deliver such Securitization may information prior to the expiration of the applicable time periods (otherwise, such information shall be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization includingdelivered promptly), without limitation, by and (aii) amending the terms of the transactions under the Management Agreement, the Contribution Agreement, this Agreement and the other Loan DocumentsDocuments to the extent reasonably necessary so as to satisfy the requirements of investors or selected rating agencies involved in such Securitization, so long as such amendments would not have a material adverse effect on any of the parties (other than FFCA and executing REIT) to the transactions described in this Agreement nor result in the Loan Documents being more burdensome to any of such additional documentsparties (other than FFCA or REIT). Debtor shall not be responsible for any actual and reasonable out-of-pocket attorneys' fees or other expenses incurred by FFCA, as reasonably requested by the Lenders Debtor or Guarantor in connection with the SecuritizationSecuritization or Debtor's, RC/Arby's or Guarantor's cooperation with FFCA's Securitization efforts; FFCA shall be required to reimburse Debtor, Arby's, RC/Arby's or Guarantor for any of their actual and reasonable out-of-pocket expenses (including, without limitation, attorney's fees and expenses) incurred in cooperating with FFCA with respect to the Securitization provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower expenses are reasonable and (ii) any unless the information and materials provided by them are otherwise required at such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under time to be provided by Debtor to FFCA pursuant to the Loan Documents Documents. At such time as FFCA undertakes the Securitization, FFCA agrees to use its best efforts to be and remain the master or change or affect in a manner adverse to Borrower the financial terms special servicer of the Loans, (b) providing such information as may be reasonably requested by Loan and Equipment Loan under and subject to the Lenders or rating agencies applicable pooling and/or servicing agreement during the period that securities issued in connection with the rating of Securitization remain outstanding. The trustee pursuant to the Loans applicable pooling and servicing agreement or the Securitization, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity similar agreements (collectively, the “"Trustee") entered into in connection with a Securitization Parties”(collectively, the "Securitization Documents"), and the certificateholders or investors of certificates issued in connection with the applicable pooling and servicing agreement (collectively, the "Certificateholders"), shall not be subject to the terms and conditions of the Confidentiality Agreement provided that:
(i) for any lossesthe Trustee, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party itself and the Certificateholders, are bound pursuant to the Lender Partiers Securitization Documents by confidentiality provisions therein that are substantially in the form of the Confidentiality Agreement (the "Securitization Provisions");
(ii) all reports delivered by a Trustee to Certificateholders contain a legend indicating that the contents of such reports are con- fidential; and
(iii) all securities offering documents evidencing the Securitization (the "Securities Offering Documents") provide that all Certificateholders, by accepting the certificates evidencing their investment in the securities issued in connection with any Loan Document or arise out of or such Securitization, are based upon bound by the omission or alleged omission Securitization Provisions. Notwithstanding the foregoing, if a Certificateholder requests financial information that it is entitled to state therein a material fact required receive under the Securities Offering Documents with respect to ARHC and/or Guarantor other than that financial information which is contained in the reports to be stated therein, or necessary in order delivered by the Trustee to make such Certificateholder pursuant to the statements therein, in light of the circumstances under which they were made, not misleadingapplicable pooling and servicing agreement, and such indemnity financial information would otherwise be deemed to be Confidential Information (as defined in the Confidentiality Agreement), such Certificateholder shall survive any transfer be required by the Lenders or their successors or assigns Trustee to execute a confidentiality agreement containing the Securitization Provisions (the "Securitization Confidentiality Agreement") as a condition precedent to receiving such requested financial information; provided, however, if such Certificateholder is a chain restaurant company, such Certificateholder shall not be entitled to receive such requested financial information unless ARHC and/or Guarantor, as applicable, depending on whether the information requested concerns such party, consent(s) to the release of such information. Upon written notice from ARHC, FFCA shall demand that the Trustee and Certificateholders comply with the Securitization Confidentiality Agreement. FFCA agrees and acknowledges that ARHC is an intended third-party beneficiary of the Loans, and (ii) agreeing to reimburse the Lender Parties Securitization Confidentiality Agreement and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons terms and conditions of this Section. Upon FFCA's assignment of this Agreement to the Trustee pursuant to the applicable pooling and servicing agreement, FFCA, ARHC and Guarantor acknowledge and agree that the Trustee, as assignee of FFCA, will have no further obligation to fund Loans and Equipment Loans pursuant to this Agreement. Notwithstanding the foregoing, the obligation of FFCA and REIT to provide ARHC with the unfunded Loan and Equipment Loan commitments on the terms and conditions as set forth in connection with defending this Agreement are not limited. FFCA and ARHC agree that they shall enter into a new loan agreement within thirty (30) days following the Securitization Liabilities(the "Substitute Loan Agreement"), the material terms of which will be substantially similar to the outstanding commitment of FFCA to ARHC pursuant to this Agreement (including, without limitation, the guaranty by Guarantor of ARHC's Substitute Loan Agreement obligations.
01/ 514412.5 Arby's 53
Appears in 1 contract
Samples: Loan Agreement (Rc Arbys Corp)
Securitization. In addition Subject to any other assignment permitted pursuant Sections 11.7 and 18.14 hereof: - 133 -
(a) Administrative Agent shall have the right (i) to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization. The transactions referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Administrative Agent, Borrower shall assist Administrative Agent in satisfying the pledge of the Loans as collateral security for loans market standards to a Lender Party which Administrative Agent customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, including, without limitation and to the extent customary and reasonable as provided in this sentence, to:
(such asi) provide (A) updated financial and other information reasonably available to Borrower with respect to the Property, for instancethe business operated at the Property, collateralized loan obligations)Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Guarantor, SPE Component Entity, Mezzanine A SPE Component Entity, Mezzanine B SPE Component Entity and Manager, (B) updated budgets relating to the Property, and (yC) 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 “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Administrative Agent and acceptable to the Rating Agencies and (D) revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Administrative Agent and acceptable to the Rating Agencies;
(ii) to the extent such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the opinions were delivered to Lender Parties to effect the Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; closing of the Loan (provided any such opinion was not waived by Administrative Agent with respect to the Loan), provide updated opinions of counsel, which may be relied upon by Administrative Agent, Lenders and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Property Documents, Borrower and Borrower’s Affiliates, which counsel and opinions shall be reasonably satisfactory in form and substance to Administrative Agent and shall be satisfactory in form and substance to the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents (which representations and warranties may be updated to reflect any change in facts and circumstances since the Closing Date, provided that (i) any such amendment or additional documentation does change in facts and circumstances is not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of due to a Default by Borrower under the Loan Documents); and
(iv) execute such amendments to the Loan Documents, the Property Documents and Borrower’s or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information any SPE Component Entity’s organizational documents as may be reasonably requested by Administrative Agent or requested by the Lenders Rating Agencies or rating agencies otherwise to effect any Secondary Market Transaction, including, without limitation, (A) amend and/or supplement the Independent Manager provisions provided herein and therein, in connection each case, in accordance with the rating applicable requirements of the Loans Rating Agencies, (B) bifurcating the Loan into two or more components and/or additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the Securitizationforegoing, a “Loan Bifurcation”) and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”C) to which modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Lender Parties Loan Documents, by up to ten (10) days; provided, however, that Borrower shall not be required to so modify or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in amend any Loan Document or organizational document if such modification or amendment shall impose a Secondary Market Adverse Change on the Borrower or Guarantor. The term “Secondary Market Adverse Change” means (i) either Borrower’s or Guarantor’s liabilities or obligations under the Loan Documents are increased, or Borrower’s or Guarantor’s rights under the Loan Documents are decreased, in either case in any writing delivered by or on behalf of any Loan Party to material respect (although change in the Lender Partiers weighted average interest rate described in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and clause (ii) agreeing below shall not be deemed to reimburse increase any such liability or decrease any such rights in any material respect), (ii) any change in the Lender Parties weighted average interest rate (whether before or after the time of the proposed Loan Bifurcation or New Mezzanine) (other than as a result of (x) payments and recoveries after an Event of Default and/or (y) application of proceeds following a Casualty or Condemnation), (iii) any change to the stated Maturity Date (other Securitization Parties for than as described in clause (C) above) and/or (iv) any legal or other expenses reasonably incurred by such Persons in connection with defending change that would affect the Securitization Liabilitiesamortization of the Loan.
Appears in 1 contract
Samples: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Securitization. In addition to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge (a) Borrower understands that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) through the pledge certain of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization Provided Information may be rated by a rating agency. The Loan Parties shall reasonably cooperate included in disclosure documents in connection with the Lender Parties to effect the Securitization Securitization, including, without limitation, by a prospectus, prospectus supplement, offering memorandum or private placement memorandum, Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan (aeach, a “Disclosure Document”) amending this Agreement and may also be included in filings with the other Loan DocumentsSecurities and Exchange Commission pursuant to the Securities Act or the Exchange Act, or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and executing such additional documentsservice providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, as reasonably requested Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Lenders Disclosure Document accurate and complete in all material respects.
(b) Borrower agrees to provide, and to cause Guarantor to provide, in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency “term sheets” or presentations relating to the Securitization; provided Properties and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification certificate (A) certifying that Borrower and Guarantor have carefully examined such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan), as applicable, including without limitation, the sections entitled “Special Considerations,” and/or “Risk Factors,” and “Certain Legal Aspects of the Mortgage Loan,” or similar sections, and all sections relating to Borrower, Guarantor, Manager, their Affiliates, the Loan, the Loan Documents and the Properties, and any risks or special considerations relating thereto, and that, to the best of Borrower’s knowledge, such sections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (B) indemnifying Lender (and for purposes of this Section 13.5, Lender hereunder shall include its officers and directors) and the Affiliate of Lender that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and has filed the registration statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect Person described in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify or (ii), an “Issuer Person”), and each director and officer of any Issuer Person, and each Person or entity who controls any Issuer Person within the Lender Parties, meaning of Section 15 of the Securities Act or any party providing credit support or otherwise participating in Section 20 of the Securitization, including any investors in a securitization entity Exchange Act (collectively, the “Securitization PartiesIssuer Group”), and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any such Person within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) Losses to which Lender, the Lender Parties Issuer Group or such Securitization Parties the Underwriter Group may become subject insofar as the Securitization Liabilities Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections (including any Loan Document Investor or in any writing delivered by Rating Agency “term sheets” or on behalf of any Loan Party presentations relating to the Lender Partiers in connection with any Loan Document Properties and/or the Loan) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan) or necessary in order to make the statements thereinin such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan) or in light of the circumstances under which they were made, not misleading (collectively the “Securities Liabilities”) and (C) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender or any member of the Issuer Group or Underwriter Group by or on behalf of Borrower or Guarantor in connection with the preparation of the memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan) or in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower or Guarantor, operating statements, rent rolls, environmental site assessment reports and property condition reports with respect to the Properties. This indemnity agreement will be in addition to any liability which Borrower and Guarantor may otherwise have. Moreover, the indemnification provided for in clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and shall be applicable based on information previously provided by Borrower and Guarantor or their Affiliates if Borrower or Guarantor do not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Bxxxxxxx agrees to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon an untrue statement in the Provided Information or the omission or alleged omission to state in the Provided Information a material fact required to be stated in the Provided Information in order to make the statements in the Provided Information, in light of the circumstances under which they were made not misleading and (ii) reimburse Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by Lxxxxx, the Issuer Group or the Underwriter Group in connection with defending or investigating the Securities Liabilities.
(d) Promptly after receipt by an indemnified party under this Section 13.5 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 13.5, notify the indemnifying party in writing of the commencement thereof, but the omission to so notify the indemnifying party will not relieve the indemnifying party from any liability which the indemnifying party may have to any indemnified party hereunder except to the extent that failure to notify causes prejudice to the indemnifying party. In the event that any action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it (or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. After notice from the indemnifying party to such indemnified party under this Section 13.5 the indemnifying party shall not be responsible for any reasonable legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. The indemnifying party shall not be liable for the expenses of more than one such separate counsel unless an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another indemnified party.
(e) In order to provide for just and equitable contribution in circumstances in which the indemnity agreements provided for in Section 13.5(c) or Section 13.5(d) is or are for any reason held to be unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which would otherwise be indemnifiable under Section 13.5(c) or Section 13.5(d), the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages or liabilities (or action in respect thereof); provided, however, that no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s, Bxxxxxxx’s and Guarantor’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lxxxxx and Bxxxxxxx hereby agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation.
(f) Borrower shall, and shall cause Guarantor to, indemnify Lender and its officers, directors, partners, employees, representatives, agents and Affiliates against any Losses to which Lender and each of its officers, directors, partners, employees, representatives, agents and Affiliates, may become subject in connection with any indemnification to the Rating Agencies in connection with issuing, monitoring or maintaining the Securities insofar as the Losses arise out of or are based upon any untrue statement of any material fact in any information provided by or on behalf of Borrower to the Rating Agencies (the “Covered Rating Agency Information”) or arise out of or are based upon the omission to state a material fact in the Covered Rating Agency Information required to be stated therein or necessary in order to make the statements in the Covered Rating Agency Information, in light of the circumstances under which they were made, not misleading, .
(g) The liabilities and such indemnity obligations of Borrower and Lender under this Section 13.5 shall survive any transfer by the Lenders or their successors or assigns satisfaction of this Agreement and the satisfaction and discharge of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization LiabilitiesDebt.
Appears in 1 contract
Securitization. In addition to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) through the pledge of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by (a) amending this Agreement The Partnership has sold and may continue to sell, from time to time, certain eligible Receivables and related security to a Securitization Facility. CDFJV, in its capacity as a Partner, shall have sole discretion to determine whether or not the other Loan DocumentsPartnership shall transfer any Receivables to a Securitization Facility and to determine the timing, terms and executing conditions upon which any such additional documentstransfer is made; provided, as reasonably requested by the Lenders in connection with the Securitization; provided however, that (i) any such amendment Securitization Transaction shall be on terms and conditions customary in the industry for securitizations of similar size, type, asset class and market (it being agreed that any terms or additional documentation does not impose material additional costs on Borrower and conditions required by any investment bank underwriting or placing the securities being offered in connection with such Securitization Transaction, a party purchasing securities in a private Securitization Transaction, or by any rating agency rating such securities shall be deemed customary), (ii) the Partnership shall not assume or accept any servicing obligations in connection with any Securitized Receivables or remain liable for any such amendment or additional documentation does not materially adversely affect obligations incurred after the rightsdate such Securitized Receivables were sold, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms (iii) all Members of the LoansManagement Committee (A) shall be provided with a copy of any Receivables Sale Agreement and (B) shall be apprised of the principal terms and conditions of any such Securitization Transaction, (biv) providing to the extent not prohibited by law any party to any such Securitization Transaction or any Affiliate of CDFJV shall be provided with a copy of any sale and/or servicing agreement relating to any such Securitization Transaction upon request, subject, in the sole discretion of CDFJV exercised in good faith, to the right of CDFJV and its Affiliates to withhold any information as may CDFJV or its Affiliates deem to be reasonably requested by the Lenders or rating agencies appropriate, and (v) in connection with the rating transfer of any Receivables to a Securitization Facility, the Partners will use commercially reasonable efforts to cause the sales price of such Receivables as set forth in any Receivables Sale Agreement to be calculated in a manner consistent with the definition of Fair Market Value (as set forth in this Agreement); provided that the Partners acknowledge that the terms of each such Receivables Sale Agreement shall govern all sales of Receivables thereunder, including, without limitation, the sales price of the Loans Receivables sold thereunder. The determination of “Fair Value” as used in any such Receivables Sale Agreement, shall be determined as of the end of the calendar month within which such transfer occurs. The Partners agree to cause the Partnership to cooperate with any servicer under any Securitization Facility with respect to the enforcement of any agreements, instruments, contracts or the Securitizationother documents creating, and (c) providing a certificate (i) agreeing to indemnify the Lender Partiesevidencing, or any party providing credit support governing, securing or otherwise participating in the Securitizationrelating to a Securitized Receivable, including any investors in a securitization entity (collectivelyincluding, but not limited to, the “Manufacturer’s Repurchase Agreement.
(b) PAI may, by prior written notice, delivered not later than the Required Withdrawal Notice Date, delivered to CDFJV, either require that the Partnership not enter into any new Securitization Parties”) for any lossesTransaction and/or cease selling Receivables to a particular existing Securitization Facility, claimsin both cases, damages or liabilities effective as of the date specified in such notice (the “Securitization LiabilitiesWithdrawal Date”) ). The Partnership shall cease selling DocID: 0000-0000-0000.12 Receivables on such Withdrawal Date if and only to which the Lender Parties extent that such action would not result in a reduction, withdrawal or such Securitization Parties may become subject insofar as downgrading of the Securitization Liabilities arise out of or are based upon then current ratings by any untrue statement or alleged untrue statement rating agency of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers securities issued in connection with such Securitization Facility and otherwise complies with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal so‑called “Rating Agency Condition” or other expenses reasonably incurred by similar requirement relating to maintenance of ratings set forth in the documents governing such Persons in connection with defending the Securitization LiabilitiesFacility.
Appears in 1 contract
Samples: Partnership Agreement (Polaris Inc.)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan or (iii) to securitize the Loans Loan or any portion thereof in a single asset securitization or a pooled loan securitization. The transaction referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, 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 and Manager, (B) provide updated budgets 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 Loans Property (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as collateral security for loans to a non-consolidation, matters of Delaware (or Maryland, as applicable) and federal bankruptcy law relating to limited liability companies or any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property and Borrower and Borrower’s Affiliates, which counsel and opinions shall be satisfactory in form and substance to Lender Party or and the assignment or issuance Rating Agencies;
(iii) provide updated, as of direct or indirect interests the closing date of the Secondary Market Transaction, representations and warranties made in the Loans Loan Documents and such additional representations and warranties as the Rating Agencies may require; and
(iv) execute such as, for instance, collateralized loan obligations), amendments to the Loan Documents and (y) such Securitization Borrower or any SPE Component Entity’s organizational documents as may be rated reasonably requested by a rating agency. The Loan Parties shall reasonably cooperate with Lender or requested by the Lender Parties Rating Agencies or otherwise to effect the Securitization including, without limitation, by bifurcation of the Loan into two or more components and/or separate notes and/or creating a senior/subordinate note structure (a) amending any of the foregoing, a “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 stated maturity or the amortization of principal set forth in the Note, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the same initial weighted average coupon of the original Note. Notwithstanding anything to the contrary contained in this Agreement and or the other Loan Documents, other than costs and executing such additional documentsexpenses which are otherwise the responsibility of Borrower pursuant to the terms of the Loan Documents, as reasonably requested by Borrower shall not be responsible for the Lenders payment of any costs and expenses incurred in connection with the Securitization; provided that (i) this Section 11.1(b), other than any such amendment internal, administrative or additional documentation does not impose material additional costs on Borrower clerical cost and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization LiabilitiesBorrower.
Appears in 1 contract
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan (or any portion thereof and/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loans Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization. The transactions referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market 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) through If requested by Lender, Borrower shall assist Lender in satisfying the pledge of the Loans as collateral security for loans market standards to a which Lender Party customarily adheres or the assignment or issuance of direct or indirect interests which may be reasonably required in the Loans (such asmarketplace or by the Rating Agencies in connection with any Secondary Market Transactions, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Lender Parties to effect the Securitization including, without limitation, by to:
(ai) amending this Agreement provide (A) updated financial and other information with respect to the Property, the business operated at the Property, the Collateral, Pledgor, Borrower, Additional Obligor, Sponsor, SPE Component Entity and Manager, and (B) updated budgets relating to the Property (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Lender as to substantive non-consolidation, matters of Delaware and federal bankruptcy law relating to limited liability companies and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, the Collateral, Property Documents, Ground Lease, Condominium Documents, Borrower, Pledgor, Additional Obligor and any other Borrower Properties and Borrower’s Affiliates, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents; and
(iv) execute such amendments to the Loan Documents, the Property Documents, the Ground Lease, the Condominium Documents and executing such additional documentsBorrower’s, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) Pledgor’s, Additional Obligor’s or any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies or rating agencies otherwise to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) to establish different interest rates and to reallocate the principal balances of the Loan and the Mezzanine Loans amongst each other, (C) further bifurcating the Loan into additional components and/or additional separate notes and/or creating additional senior/subordinate note structure(s), reallocating the Loan amongst the Components, creating and eliminating components of the Loan (including creating a B-Note) (any of the foregoing, a “Loan Bifurcation”) and (D) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would (i) increase Borrower’s liability or decrease Borrower’s rights under the Loan Documents, or (ii) change the interest rate, the stated maturity (except as provided in subclause (D) above) or the amortization of principal set forth herein, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the rating same initial weighted average coupon of the Loans original Note (except following an Event of Default, prepayment following a Casualty or Condemnation or any principal payments received on the SecuritizationLoan). Provided there exists no Event of Default, and (c) providing Lender shall only be entitled to complete a certificate Loan Bifurcation or Uncrossing Event if (i) agreeing it has provided to indemnify the Lender Parties, Borrower at least thirty (30) days’ prior written notice of such Loan Bifurcation or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, Uncrossing Event and (ii) agreeing Lender has not received written notice from Borrower, within such thirty (30) day period, that Borrower or Sponsor has received written tax advice from a nationally recognized accounting firm reasonably acceptable to reimburse the Lender Parties and the other Securitization Parties that such Loan Bifurcation or Uncrossing Event “would more likely than not” (x) result in material cancellation of indebtedness income for tax purposes for Borrower, Sponsor or any legal Taxable REIT Subsidiary or other expenses reasonably incurred by (y) cause a material risk that Sponsor would fail to qualify as a REIT, provided that Borrower shall provide to Lender a copy of such Persons in connection with defending the Securitization Liabilities.written tax
Appears in 1 contract
Samples: Loan Agreement (Retail Value Inc.)
Securitization. In addition (a) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loans Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (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”) through . Any certificates, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the pledge of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization Loan may be rated subject to one or more Secondary Market Transactions.
(b) If requested by a rating agency. The Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably cooperate required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Lender Parties to effect Properties, the Securitization business operated at the Properties, Borrower, Sponsor and the Manager, including, without limitation, by the information set forth on Exhibit C attached hereto, (aB) amending this Agreement and provide updated budgets relating to the other Loan DocumentsProperties, and executing such additional documents(C) provide updated appraisals, as reasonably requested by 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 Lenders Properties (the “Updated Information”) which were obtained in connection with the origination of the Loan;
(ii) provide reliance to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers) on (A) each Insolvency Opinion, and (B) each opinion of Borrower’s and Guarantor’s New York and Delaware counsel, or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents 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 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 or alter the basis for any interest rate or convert such interest rate to a fixed rate, (B) 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 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 Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization; provided , 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 Properties alone or the Properties 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 amendment Securitization, may equal or additional documentation does 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 impose material additional costs on Borrower 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 amendment Securitization, may equal or additional documentation does 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 materially adversely affect be limited to, a balance sheet with respect to the rightsentity 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 if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or materially increase 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 obligationsother conditions set forth in Rule 3-14 of Regulation S-X have been met, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms 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 LoansProperties if, (b) providing in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such information as may Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be reasonably requested by included in the Lenders Securitization such that such Tenant or rating agencies group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the rating preparation of the Loans 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 (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) 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.
(e) If Lender 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 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) If reasonably requested by Lender in connection with a Securitization, and (c) providing Borrower shall provide Lender, within a certificate (i) agreeing reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to indemnify the Lender Partiesbe required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any party providing credit support amendment, modification or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties for any legal replacement thereto or other expenses reasonably incurred by such Persons in connection with defending the Securitization LiabilitiesLegal Requirements relating to a Securitization.
Appears in 1 contract
Samples: Loan Agreement (American Residential Properties, Inc.)
Securitization. In addition (a) Borrower acknowledges and agrees that Lender may, at each party’s expense to any other assignment permitted pursuant to this Sectionthe extent provided for in accordance with Section 9.1.1(b), Loan Parties hereby acknowledge that consummate one or more private or public securitizations of rated single- or multi-class securities (x) the Lenders, their Affiliates and Approved Funds (“Lender PartiesSecurities”) may sell secured by or securitize evidencing ownership interests in all or any portion of the Loans Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (such sales, participations and/or securitizations, collectively, a “Securitization”). Bxxxxxxx acknowledges and agrees that Disqualified Persons may be holders or purchasers of Securities in connection with a Securitization.
(b) through At the pledge request of Lender, and to the Loans as collateral security for loans extent not already required to a Lender Party be provided by or the assignment or issuance on behalf of direct or indirect interests Borrower under this Agreement, Borrower shall provide information not in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization possession of Lender or which may be rated reasonably required by a rating agencyLender or take other actions reasonably required by Lxxxxx, in each case in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization, provided such information is in its possession and can be produced without undue burden or cost. The Loan Parties Lender shall reasonably cooperate with have the Lender Parties right to effect provide to prospective investors and the Securitization Rating Agencies any information in its possession, including, without limitation, by (a) amending this Agreement financial statements relating to Borrower, Senior Borrower, Guarantor, if any, the Properties and any Tenant of the Improvements. Borrower acknowledges that certain information regarding the Loan and the parties thereto and the Properties may be included in a private placement memorandum, prospectus or other Loan Documentsdisclosure documents. Borrower shall, at Lxxxxx’s request, at Lxxxxx’s sole cost and executing expense (other than with respect to Borrower’s attorneys’ fees and expenses), cooperate with Lxxxxx’s efforts to arrange for a Securitization in accordance with the market standards to which Lender customarily adheres and/or which may be required by prospective investors and/or the Rating Agencies in connection with any such additional documentsSecuritization. Borrower agrees to review, as reasonably requested by the Lenders at Lxxxxx’s request in connection with the Securitization; provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect , the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms highlighted sections of the Loans, (b) providing such information as may be reasonably requested by Disclosure Documents to the Lenders or rating agencies in connection with the rating extent of the Loans or information that was provided by Bxxxxxxx and relates to Borrower, Senior Borrower, Guarantor, and/or the Securitization, and (c) providing a certificate (i) agreeing to indemnify the Lender Parties, or any party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities Properties (the “Securitization LiabilitiesCovered Disclosure Information”) and shall confirm that the factual statements and representations contained in such highlighted sections (to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out extent of or are based upon any Provided Information therein) do not contain any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required or omit to be stated therein, or state a material fact necessary in order to make the statements thereinmade, in the light of the circumstances under which they were made, not misleading.
(c) Borrower agrees to make upon Lxxxxx’s written request, without limitation, all structural or other changes to the Loan (including delivery of 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 indemnity new notes or modified note may have different interest rates and amortization schedules), modifications to any documents evidencing or securing the Loan, creation of one or more new mezzanine loans (including amending Borrower’s organizational structure to provide for one or more new mezzanine borrowers), delivery of opinions of counsel acceptable to the Rating Agencies or potential investors and addressing such matters as the Rating Agencies or potential investors may require; provided, however, that in creating such new notes or modified notes or new mezzanine notes Borrower shall survive any transfer by not be required to modify (i) the Lenders or their successors or assigns weighted average interest rate payable under the Note (except that the weighted average interest rate may subsequently change due to (1) the application of the Loansfunds following an Event of Default, and (2) the application of Net Liquidation Proceeds after Debt Service), (ii) agreeing the stated maturity of the Note, (iii) the aggregate amortization of principal of the Note, (iv) any other material economic term of the Loan (including, but not limited to, the aggregate Exit Fee payable across all notes), or (v) decrease the time periods during which Borrower is permitted to reimburse perform its obligations under the Lender Parties and the other Securitization Parties for Loan Documents.
(d) If requested by Lender, Borrower shall provide Lender, promptly upon written request, with any legal financial statements, financial, statistical or operating information or other expenses reasonably incurred information as Lender shall determine necessary or appropriate (including items required (or items that would be required if the Securitization were offered publicly) pursuant to Regulation AB under the Securities Act, or the Exchange Act, or any amendment, modification or replacement thereto) or required by such Persons any other legal requirements, in each case, in connection with defending any private placement memorandum, prospectus or other disclosure documents or materials or any filing pursuant to the Exchange Act in connection with the Securitization Liabilitiesor as shall otherwise be reasonably requested by Lxxxxx, provided, in each case, the same is in Borrower’s possession or control or can be produced without undue burden.
Appears in 1 contract
Securitization. In addition (1) Lender shall have the right (i) to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (x) the Lenders, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize otherwise transfer the Loans Loan (a “Securitization”or any portion thereof and/or interest therein), (ii) through the pledge of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect sell participation interests in the Loans Loan (such as, for instance, collateralized loan obligationsor any portion thereof and/or interest therein) or (iii) to securitize the Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled asset securitization. The transactions referred to in clauses (i), (ii) and (yiii) such above shall hereinafter be referred to collectively as "Secondary Market 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".
(2) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be rated reasonably required in the marketplace or by a rating agency. The Loan Parties shall reasonably cooperate the Rating Agencies in connection with the Lender Parties to effect the Securitization any Secondary Market Transactions, including, without limitation, by to:
(a) amending this Agreement provide (A) updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, Sponsor, SPE Component Entity and Manager, (B) updated budgets relating to the Property, (C) 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 "Updated Information"), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies and (D) revisions to and other agreements with respect to the Property Documents in form and substance acceptable to Lender and the Rating Agencies;
(b) provide new and/or updated opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Property Documents, Borrower and Borrower's Affiliates, which counsel and opinions shall be satisfactory in form and substance to Lender and the Rating Agencies;
(c) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may require; and
(d) execute such amendments to the Loan Documents, the Property Documents and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) Borrower's or any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (b) providing such information SPE Component Entity's organizational documents as may be reasonably requested by Lender or requested by the Lenders Rating Agencies or rating agencies otherwise to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein, in LOAN AGREEMENT – Page 103 41458-110/JANAF Shopping Yard (VA) each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan into two or more components and/or additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the foregoing, a "Loan Bifurcation") and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would change the interest rate, the stated maturity (except as provided in subclause (C) above) or the amortization of principal set forth herein, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the same initial weighted average coupon of the original Note.
(3) 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 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, 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 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 rating preparation of the Loans or Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (cC) providing 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 certificate filing pursuant to the Exchange Act in connection with or relating to the Securitization (ian "Exchange Act Filing") agreeing is not required. If requested by Lender, Borrower shall furnish to indemnify Lender financial data and/or financial statements for any tenant of the Property (to the extent Borrower is in possession of such information or can reasonably obtain from such tenant) if, in connection with a Securitization, Lender Partiesexpects 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.
(4) All financial data and statements provided by Borrower hereunder shall be prepared in accordance with GAAP, and shall meet the requirements of Regulation AB and other LOAN AGREEMENT – Page 104 41458-110/JANAF Shopping Yard (VA) applicable legal requirements. All financial statements referred to in this Section 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 statements (audited or unaudited) provided by Borrower under this Section shall be accompanied by an Officer's Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (d).
(5) If requested by Lender, Borrower shall provide Lender, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall determine to be required pursuant to Regulation AB or any party providing credit support amendment, modification or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages replacement thereto or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers other legal requirements in connection with any Loan Disclosure Document or arise out of any Exchange Act Filing or are based upon as shall otherwise be reasonably requested by Lender.
(6) In the omission or alleged omission to state therein event Lender determines, in connection with a material fact Securitization, that the financial data and financial statements required to be stated therein, or necessary in order to make comply with Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the statements thereinprovisions of this Section, in light of the circumstances under which they were made, not misleadingLender may reasonably request, and Borrower shall promptly provide, such indemnity shall survive any transfer by the Lenders other financial data and financial statements as Lender determines to be necessary or their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the other Securitization Parties appropriate for any legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilitiescompliance.
Appears in 1 contract
Samples: Loan Agreement (Wheeler Real Estate Investment Trust, Inc.)
Securitization. In addition to Borrower hereby acknowledges that Lender, any other assignment permitted pursuant to this Sectionof its Affiliates, Loan Parties hereby acknowledge that (x) the Lendersits successors or assigns, their Affiliates and Approved Funds (“Lender Parties”) may sell or securitize the Loans (a “Securitization”) Loan through the pledge issuance of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such asCertificates, for instance, collateralized loan obligations), and (y) such Securitization may which will be rated by a rating agencythe Rating Agencies (the "Securitization"). The Loan Parties shall reasonably Borrower agrees that it will use its commercially reasonable efforts to cooperate fully with Lender and the Rating Agencies in connection with the Lender Parties to effect the Securitization Securitization, including, without limitationbut not limited to, by (a) amending this Agreement and entering into nonmaterial amendments to the other Loan DocumentsDocuments that do not materially adversely affect Borrower's rights or obligations thereunder, and executing such additional documents, as reasonably requested to the extent required by the Lenders Rating Agencies or otherwise in connection with the Securitization; provided that (ib) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) any such amendment or additional documentation does not materially adversely affect assisting in the rights, or materially increase the obligations, preparation of Borrower under offering documents describing the Loan Documents or change or affect and the Securitization in a manner adverse to Borrower that satisfies the financial terms requirements of the Loansapplicable federal and state securities laws, by (bi) providing such information with respect to Borrower, its Affiliates, the Individual Properties (or the management thereof) or the Loan as may be reasonably requested in connection therewith and (ii) acting reasonably and promptly in connection with its review and approval of the portions of the offering documents pertaining to Borrower, its Affiliates, the Individual Properties (or the management thereof) or the Loan; (c) causing to be rendered an opinion letter in substantially the form attached hereto as Exhibit N (subject to changes in law or fact after the date hereof and further subject to changes requested by the Lenders Rating Agencies (to the extent such changes are consistent with applicable law or rating agencies facts)) and an opinion letter from Xxxxxxx, Xxxxx & Xxxxxx to Borrower stating that the assignment of the Loan and the Loan Documents to Trustee is enforceable; (d) representing that as of the Securitization Closing Date (i) the Principal Indebtedness does not exceed 125% of the Tax Fair Market Value of the Mortgaged Property and (ii) the fair market value of any personal property or other property that is part of the Mortgaged Property that is not "qualifying real property" within the meaning of Treasury Regulation ss.1.593-11(b) does not exceed the excess, if any, of the Tax Fair Market Value of the Mortgaged Property over the Principal Indebtedness, and providing Lender with any supporting materials reasonably requested by Lender; and (e) at reasonable times and upon reasonable notice, showing potential Certificateholders the Individual Properties. Borrower agrees to reimburse its pro rata share (based on the percentage of the aggregate loan amount included in the Securitization represented by the principal amount of the Loan) of reasonable third party fees and expenses in connection with the rating Securitization, including, but not limited to, reasonable legal fees and disbursements, third-party due diligence expenses, Rating Agency fees and expenses, the costs of providing appraisals, environmental reports and engineering reports as required by the Loans Rating Agencies, and any servicing, Trustee or special servicing fees and expenses, provided, however, that the third party fees and expenses to be reimbursed by Borrower shall not exceed the Securitization Expense Reserve Amount. In connection with the Securitization, Lender intends to use the Engineering Reports, the Environmental Reports and (c) providing a certificate (i) agreeing other third party reports, updated as necessary due to indemnify the age of such reports, to the extent permitted by the Rating Agencies. On the Closing Date, proceeds of the Loan in an amount equal to the Securitization Expense Reserve Amount shall be deposited into the Securitization Expense Sub-Account. Within 90 days from the Securitization Closing Date, Lender Partiesshall provide Borrower with an itemized xxxx of the third party fees and expenses for which it seeks reimbursement from Borrower. Within 10 days from its receipt of such xxxx, or any party providing credit support or otherwise participating Borrower shall have the right to request in writing to Lender an adjustment of such xxxx, which adjustment Lender may grant in its reasonable discretion based on the nature of this Loan and the costs associated with other loans in the Securitization. Within 30 days from the delivery of such xxxx (or within 30 days from the delivery of the adjusted xxxx, including any investors in a securitization entity (collectivelyas the case may be) to Borrower, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as funds in the Securitization Liabilities arise out Expense Sub-Account shall be applied to reimburse Lender for such expenses, with any remaining funds in the Securitization Expense Sub-Account to be returned to Borrower on the next Payment Date. On or prior to the Securitization Closing Date, Borrower and MEI shall execute and deliver to Lender an instrument (in form and substance reasonably satisfactory to Lender, Borrower and MEI) indemnifying and holding Lender and its controlling Persons and Affiliates harmless against all costs, expenses and damages incurred by Lender and its controlling Persons and Affiliates (including, without limitation, all liabilities under all applicable federal and state securities laws) as a direct result of or are based upon any untrue statement or alleged untrue statement of any a material fact contained in such offering documents based on information provided in writing by Borrower, MEI or their counsel which describes Borrower, MEI, their respective Affiliates, the Individual Properties (and the management thereof) or any Loan Document aspect of the Loan, or as a result of any untrue statement of material fact in any of the financial statements of Borrower, MEI or their respective Affiliates incorporated into the offering documents or the failure to include in such financial statements or in such offering documents any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required relating to be stated thereinBorrower, or MEI, their respective Affiliates, the Individual Properties (and the management thereof) and any aspect of the Loan necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that Borrower shall have had an opportunity to review and shall have approved in writing the relevant portions of the offering documents pertaining to Borrower, MEI, their respective Affiliates, the Individual Properties (or the management thereof) or the Loan; and provided, further, that Borrower shall have no such indemnity obligation with respect to information unrelated to Borrower, MEI, their respective Affiliates, the Individual Properties (and the management thereof) or the Loan. Borrower and MEI shall survive not indemnify Lender for any transfer by liability, loss, cost or expense incurred as a result of the Lenders inclusion of any erroneous or misleading information in the offering documents, or the omission of material information from the offering documents, pertaining to Borrower, MEI, their respective Affiliates, the Individual Properties (and the management thereof) or any aspect of the Loan, unless Borrower, MEI or their successors or assigns counsel shall have previously approved in writing such portions of the Loansoffering documents. Borrower and MEI shall not indemnify Lender for any liability, and loss, cost or expense incurred as a result of the inclusion of any erroneous or misleading information in the offering documents, or the omission of material information from the offering documents, unrelated to Borrower, MEI, their respective Affiliates, the Individual Properties (ii) agreeing to reimburse the Lender Parties and the management thereof) or any aspect of the Loan. On or prior to the Securitization Closing Date, Lender shall execute and deliver to Borrower an instrument (in form and substance reasonably satisfactory to Lender and Borrower) indemnifying and holding Borrower and its Affiliates harmless against all costs, expenses and damages (other Securitization Parties for any legal or other than consequential damages and costs and expenses reasonably specifically agreed by Borrower to be borne by it) incurred by them (including, without limitation, all liabilities under all applicable federal and state securities laws) caused by and directly relating to such Persons offering or the Securitization; provided, however, that such indemnification shall not apply if any such costs, expenses or damages arise out of or are based upon an untrue statement of a material fact or an omission to state a material fact in connection with defending the Securitization Liabilitiessuch offering documents or in Borrower's, MEI's or their Affiliates' financial statements for which Borrower is providing indemnification as provided above.
Appears in 1 contract
Samples: Loan Agreement (American Real Estate Investment Corp)
