Common use of Third Qualified Extension Option Clause in Contracts

Third Qualified Extension Option. Borrowers shall have the right to extend the Second Qualified Extended Maturity Date to the Third Qualified Extended Maturity Date (the “Third Qualified Extension Option”; and the period commencing on the first (1st) day following the Second Qualified Extended Maturity Date and ending on the Third Qualified Extended Maturity Date being referred to herein as the “Third Qualified Extension Term”), provided that all of the following conditions are satisfied: (i) no monetary Default, Event of Default, monetary Mortgage Default, Mortgage Event of Default, monetary Mezzanine Default or Mezzanine Event of Default shall have occurred and be continuing at the time the Third Qualified Extension Option is exercised or on the date that the Third Qualified Extension Term commences; (ii) Borrowers shall notify Lender of their irrevocable election to exercise the Third Qualified Extension Option not earlier than six (6) months, and not later than thirty (30) days, prior to the Second Qualified Extended Maturity Date; (iii) if the Interest Rate Cap Agreement is scheduled to mature prior to the Third Qualified Extended Maturity Date, Borrowers shall obtain and deliver to Lender not later than one (1) Business Day immediately preceding the first day of the Third Qualified Extension Term, one or more Replacement Interest Rate Cap Agreements (or extension(s) of the existing Interest Rate Cap Agreement(s)) from an Acceptable Counterparty, which Replacement Interest Rate Cap Agreement(s) (or extension(s) of the existing Interest Rate Cap Agreement(s)) shall (i) be effective commencing on the first day of the Third Qualified Extension Term, (ii) have a LIBOR strike price equal to the applicable Strike Price, (iii) have a maturity date not earlier than the Third Qualified Extended Maturity Date and (iv) shall have a notional amount equal to the Outstanding Principal Balance. Borrowers shall (x) assign to Lender, as collateral for the Loan, pursuant to a Replacement Collateral Assignment of Interest Rate Cap, all of its right, title and interest to receive any and all payments under such Replacement Interest Rate Cap Agreement, and the Counterparty shall execute an acknowledgment to such Replacement Collateral Assignment of Interest Rate Cap agreeing to make deposits directly into the Cash Management Account and (y) obtain and deliver to Lender an opinion from counsel (which counsel may be in-house counsel for the Counterparty) for the Counterparty (upon which Lender and its successors and assigns may rely), which opinion shall comply with Section 2.2.7(e) hereof; (iv) not later than one (1) Business Day immediately preceding the first day of the Third Qualified Extension Term, all accrued and unpaid interest and any unpaid or unreimbursed amounts in respect of the Loan and any other sums then due to Lender hereunder or under any of the other Loan Documents shall have been paid in full; (v) the maturity date of the Mortgage Loan, if the Mortgage Loan is then outstanding, shall be extended to not earlier than the Third Qualified Extended Maturity Date on the same terms and conditions as in effect on the date hereof; (vi) the maturity date of the First Mezzanine Loan, if the First Mezzanine Loan is then outstanding, shall be extended to not earlier than the Third Qualified Extended Maturity Date on the same terms and conditions as in effect on the date hereof; (vii) the maturity date of the Third Mezzanine Loan, if the Third Mezzanine Loan is then outstanding, shall be extended to not earlier than the Third Qualified Extended Maturity Date on the same terms and conditions as in effect on the date hereof; (viii) Borrowers shall have reimbursed Lender for all costs reasonably incurred by Lender in processing the extension request, including, without limitation, reasonable legal fees and expenses; provided, however, that in no event shall Borrowers be required to pay any such fees, costs or expenses in excess of Twenty Thousand Dollars ($20,000); (ix) not later than one (1) Business Day immediately preceding the first day of the Third Qualified Extension Term, Borrowers shall have caused Mortgage Borrowers to deposit with Mortgage Lender in immediately available funds, for deposit by Mortgage Lender into the applicable Mortgage Reserve Fund(s) (other than the Interest Reserve Fund), any shortfalls in such Reserve Fund(s) with respect to the Third Qualified Extension Term, if any, as determined by Mortgage Lender in accordance with the applicable provisions of the Mortgage Loan Agreement, and which amounts thereafter shall constitute a part of the applicable Reserve Fund(s) and shall be held and disbursed by Mortgage Lender as set forth in Article VII of the Mortgage Loan Agreement (or, if the Mortgage Loan and the First Mezzanine Loan have been paid in full, Borrowers shall have deposited such amount with Lender for deposit into the applicable Reserve Fund(s) to be held and disbursed by Lender as set forth in Article VII hereof); and (x) there shall exist no Shortfall as of the Business Day immediately preceding the first (1st) day of the Third Qualified Extension Term; provided, however, that this condition shall be of no further force or effect after the date on which Final Completion is achieved.

Third Qualified Extension Option. Borrowers shall have the right to extend the Second Qualified Extended Maturity Date to the Third Qualified Extended Maturity Date (the “Third Qualified Extension Option”; and the period commencing on the first (1st) day following the Second Qualified Extended Maturity Date and ending on the Third Qualified Extended Maturity Date being referred to herein as the “Third Qualified Extension Term”), provided that all of the following conditions are satisfied: (i) no monetary Default, Event of Default, monetary Mortgage Default, Mortgage Event of Default, any monetary Mezzanine Default or any Mezzanine Event of Default shall have occurred and be continuing at the time the Third Qualified Extension Option is exercised or on the date that the Third Qualified Extension Term commences; (ii) Borrowers shall notify Lender of their irrevocable election to exercise the Third Qualified Extension Option not earlier than six (6) months, and not later than thirty (30) days, prior to the Second Qualified Extended Maturity Date; (iii) if the Interest Rate Cap Agreement is scheduled to mature prior to the Third Qualified Extended Maturity Date, Borrowers shall obtain and deliver to Lender not later than one (1) Business Day immediately preceding the first day of the Third Qualified Extension Term, one or more Replacement Interest Rate Cap Agreements (or extension(s) of the existing Interest Rate Cap Agreement(s)) from an Acceptable Counterparty, which Replacement Interest Rate Cap Agreement(s) (or extension(s) of the existing Interest Rate Cap Agreement(s)) shall (i) be effective commencing on the first day of the Third Qualified Extension Term, (ii) have a LIBOR strike price equal to the applicable Strike Price, (iii) have a maturity date not earlier than the Third Qualified Extended Maturity Date and (iv) shall have a notional amount equal to the Outstanding Principal Balance. Borrowers shall (x) assign to Lender, as collateral for the Loan, pursuant to a Replacement Collateral Assignment of Interest Rate Cap, all of its right, title and interest to receive any and all payments under such Replacement Interest Rate Cap Agreement, and the Counterparty shall execute an acknowledgment to such Replacement Collateral Assignment of Interest Rate Cap agreeing to make deposits directly into the Cash Management Account and (y) obtain and deliver to Lender an opinion from counsel (which counsel may be in-house counsel for the Counterparty) for the Counterparty (upon which Lender and its successors and assigns may rely), which opinion shall comply with Section 2.2.7(e) hereof; (iv) not later than one (1) Business Day immediately preceding the first day of the Third Qualified Extension Term, all accrued and unpaid interest and any unpaid or unreimbursed amounts in respect of the Loan and any other sums then due to Lender hereunder or under any of the other Loan Documents shall have been paid in full; (v) the maturity date of the Mortgage Loan, if the Mortgage Loan is then outstanding, shall be extended to not earlier than the Third Qualified Extended Maturity Date on the same terms and conditions as in effect on the date hereof; (vi) the maturity date of the First Mezzanine Loan, if the First Mezzanine Loan is then outstanding, shall be extended to not earlier than the Third Qualified Extended Maturity Date on the same terms and conditions as in effect on the date hereof; (vii) the maturity date of the Third Second Mezzanine Loan, if the Third Second Mezzanine Loan is then outstanding, shall be extended to not earlier than the Third Qualified Extended Maturity Date on the same terms and conditions as in effect on the date hereof; (viii) Borrowers shall have reimbursed Lender for all costs reasonably incurred by Lender in processing the extension request, including, without limitation, reasonable legal fees and expenses; provided, however, that in no event shall Borrowers be required to pay any such fees, costs or expenses in excess of Twenty Thousand Dollars ($20,000); (ix) not later than one (1) Business Day immediately preceding the first day of the Third Qualified Extension Term, Borrowers shall have caused Mortgage Borrowers to deposit with Mortgage Lender in immediately available funds, for deposit by Mortgage Lender into the applicable Mortgage Reserve Fund(s) (other than the Interest Reserve Fund), any shortfalls in such Reserve Fund(s) with respect to the Third Qualified Extension Term, if any, as determined by Mortgage Lender in accordance with the applicable provisions of the Mortgage Loan Agreement, and which amounts thereafter shall constitute a part of the applicable Reserve Fund(s) and shall be held and disbursed by Mortgage Lender as set forth in Article VII of the Mortgage Loan Agreement (or, if the Mortgage Loan, the First Mezzanine Loan and the First Second Mezzanine Loan have been paid in full, Borrowers shall have deposited such amount with Lender for deposit into the applicable Reserve Fund(s) to be held and disbursed by Lender as set forth in Article VII hereof); and (x) there shall exist no Shortfall as of the Business Day immediately preceding the first (1st) day of the Third Qualified Extension Term; provided, however, that this condition shall be of no further force or effect after the date on which Final Completion is achieved.

Third Qualified Extension Option. Borrowers shall have the right to extend the Second Qualified Extended Maturity Date to the Third Qualified Extended Maturity Date (the “Third Qualified Extension Option”; and the period commencing on the first (1st) day following the Second Qualified Extended Maturity Date and ending on the Third Qualified Extended Maturity Date being referred to herein as the “Third Qualified Extension Term”), provided that all of the following conditions are satisfied: (i) no monetary Default, Event of Default, monetary Mortgage First Mezzanine Default, Mortgage First Mezzanine Event of Default, monetary Second Mezzanine Default, Second Mezzanine Event of Default, monetary Third Mezzanine Default or Third Mezzanine Event of Default shall have occurred and be continuing at the time the Third Qualified Extension Option is exercised or on the date that the Third Qualified Extension Term commences; (ii) Borrowers shall notify Lender of their irrevocable election to exercise the Third Qualified Extension Option not earlier than six (6) months, and not later than thirty (30) days, prior to the Second Qualified Extended Maturity Date; (iii) if the any Interest Rate Cap Agreement is scheduled to mature prior to the Third Qualified Extended Maturity Date, Borrowers shall obtain and deliver to Lender not later than one (1) Business Day immediately preceding the first day of the Third Qualified Extension Term, one or more Replacement Interest Rate Cap Agreements (or extension(s) of the existing Interest Rate Cap Agreement(s)) from an Acceptable Counterparty, which Replacement Interest Rate Cap Agreement(s) (or extension(s) of the existing Interest Rate Cap Agreement(s)) shall (i) be effective commencing on the first day of the Third Qualified Extension Term, (ii) have a LIBOR strike price equal to the applicable Strike Price, (iii) have a maturity date not earlier than the Third Qualified Extended Maturity Date Date, and (iv) shall have a notional amount equal to the Reduced Acquisition Loan Outstanding Principal Balance and the Construction Loan Outstanding Principal Balance. Borrowers shall (x) assign to Lender, as collateral for the Loan, pursuant to a Replacement Collateral Assignment of Interest Rate Cap, all of its right, title and interest to receive any and all payments under such Replacement Interest Rate Cap Agreement, and the Counterparty shall execute an acknowledgment to such Replacement Collateral Assignment of Interest Rate Cap agreeing to make deposits directly into the Cash Management Lockbox Account and (y) obtain and deliver to Lender an opinion from counsel (which counsel may be in-house counsel for the Counterparty) for the Counterparty (upon which Lender and its successors and assigns may rely), which opinion shall comply with Section 2.2.7(e) hereof; (iv) not later than one (1) Business Day immediately preceding the first day of the Third Qualified Extension Term, all accrued and unpaid interest and any unpaid or unreimbursed amounts in respect of the Loan and any other sums then due to Lender hereunder or under any of the other Loan Documents shall have been paid in full; (v) the maturity date of the Mortgage First Mezzanine Loan, if the Mortgage First Mezzanine Loan is then outstanding, shall be extended to not earlier than the Third Qualified Extended Maturity Date on the same terms and conditions as in effect on the date hereof; (vi) the maturity date of the First Second Mezzanine Loan, if the First Second Mezzanine Loan is then outstanding, shall be extended to not earlier than the Third Qualified Extended Maturity Date on the same terms and conditions as in effect on the date hereof; (vii) the maturity date of the Third Mezzanine Loan, if the Third Mezzanine Loan is then outstanding, shall be extended to not earlier than the Third Qualified Extended Maturity Date on the same terms and conditions as in effect on the date hereof; (viii) Borrowers shall have reimbursed Lender for all costs reasonably incurred by Lender in processing the extension request, including, without limitation, reasonable legal fees and expenses; provided, however, that in no event shall Borrowers be required to pay any such fees, costs or expenses in excess of Twenty Thousand Dollars ($20,000); (ix) not later than one (1) Business Day immediately preceding the first day of the Third Qualified Extension Term, Borrowers shall have caused Mortgage Borrowers to deposit deposited with Mortgage Lender in immediately available funds, for deposit by Mortgage Lender into the applicable Mortgage Reserve Fund(s) (other than the Interest Reserve Fund), any shortfalls in such Reserve Fund(s) with respect to the Third Qualified Extension Term, if any, as determined reasonably estimated and underwritten by Mortgage Lender based on (A) the Annual Budget then in accordance effect and (B) underwriting criteria consistent with that used by Lender to determine the amount of the deposit to the applicable provisions Reserve Fund(s) on the Closing Date (and throughout the term of the Mortgage Loan AgreementLoan), and which amounts amount thereafter shall constitute a part of the applicable Reserve Fund(s) and shall be held and disbursed by Mortgage Lender as set forth in Article VII of the Mortgage Loan Agreement (or, if the Mortgage Loan and the First Mezzanine Loan have been paid in full, Borrowers shall have deposited such amount with Lender for deposit into the applicable Reserve Fund(s) to be held and disbursed by Lender as set forth in Article VII hereof); and (x) there shall exist no Shortfall as of the Business Day immediately preceding the first (1st) day of the Third Qualified Extension Term; , provided, however, that this condition shall be of no further force or effect after the date on which Final Completion is achieved.

Third Qualified Extension Option. Borrowers shall have the right to extend the Second Qualified Extended Maturity Date to the Third Qualified Extended Maturity Date (the “Third Qualified Extension Option”; and the period commencing on the first (1st) day following the Second Qualified Extended Maturity Date and ending on the Third Qualified Extended Maturity Date being referred to herein as the “Third Qualified Extension Term”), provided that all of the following conditions are satisfied: (i) no monetary Default, Event of Default, monetary Mortgage Default, Mortgage Event of Default, monetary Mezzanine Default or Mezzanine Event of Default shall have occurred and be continuing at the time the Third Qualified Extension Option is exercised or on the date that the Third Qualified Extension Term commences; (ii) Borrowers shall notify Lender of their irrevocable election to exercise the Third Qualified Extension Option not earlier than six (6) months, and not later than thirty (30) days, prior to the Second Qualified Extended Maturity Date; (iii) if the Interest Rate Cap Agreement is scheduled to mature prior to the Third Qualified Extended Maturity Date, Borrowers shall obtain and deliver to Lender not later than one (1) Business Day immediately preceding the first day of the Third Qualified Extension Term, one or more Replacement Interest Rate Cap Agreements (or extension(s) of the existing Interest Rate Cap Agreement(s)) from an Acceptable Counterparty, which Replacement Interest Rate Cap Agreement(s) (or extension(s) of the existing Interest Rate Cap Agreement(s)) shall (i) be effective commencing on the first day of the Third Qualified Extension Term, (ii) have a LIBOR strike price equal to the applicable Strike Price, (iii) have a maturity date not earlier than the Third Qualified Extended Maturity Date and (iv) shall have a notional amount equal to the Outstanding Principal Balance. Borrowers shall (x) assign to Lender, as collateral for the Loan, pursuant to a Replacement Collateral Assignment of Interest Rate Cap, all of its right, title and interest to receive any and all payments under such Replacement Interest Rate Cap Agreement, and the Counterparty shall execute an acknowledgment to such Replacement Collateral Assignment of Interest Rate Cap agreeing to make deposits directly into the Cash Management Account and (y) obtain and deliver to Lender an opinion from counsel (which counsel may be in-house counsel for the Counterparty) for the Counterparty (upon which Lender and its successors and assigns may rely), which opinion shall comply with Section 2.2.7(e) hereof; (iv) not later than one (1) Business Day immediately preceding the first day of the Third Qualified Extension Term, all accrued and unpaid interest and any unpaid or unreimbursed amounts in respect of the Loan and any other sums then due to Lender hereunder or under any of the other Loan Documents shall have been paid in full; (v) the maturity date of the Mortgage Loan, if the Mortgage Loan is then outstanding, shall be extended to not earlier than the Third Qualified Extended Maturity Date on the same terms and conditions as in effect on the date hereof; (vi) the maturity date of the First Second Mezzanine Loan, if the First Second Mezzanine Loan is then outstanding, shall be extended to not earlier than the Third Qualified Extended Maturity Date on the same terms and conditions as in effect on the date hereof; (vii) the maturity date of the Third Mezzanine Loan, if the Third Mezzanine Loan is then outstanding, shall be extended to not earlier than the Third Qualified Extended Maturity Date on the same terms and conditions as in effect on the date hereof; (viii) Borrowers shall have reimbursed Lender for all costs reasonably incurred by Lender in processing the extension request, including, without limitation, reasonable legal fees and expenses; provided, however, that in no event shall Borrowers be required to pay any such fees, costs or expenses in excess of Twenty Thousand Dollars ($20,000); (ix) not later than one (1) Business Day immediately preceding the first day of the Third Qualified Extension Term, Borrowers shall have caused Mortgage Borrowers to deposit with Mortgage Lender in immediately available funds, for deposit by Mortgage Lender into the applicable Mortgage Reserve Fund(s) (other than the Interest Reserve Fund), any shortfalls in such Reserve Fund(s) with respect to the Third Qualified Extension Term, if any, as determined by Mortgage Lender in accordance with the applicable provisions of the Mortgage Loan Agreement, and which amounts thereafter shall constitute a part of the applicable Reserve Fund(s) and shall be held and disbursed by Mortgage Lender as set forth in Article VII of the Mortgage Loan Agreement (or, if the Mortgage Loan and the First Mezzanine Loan have has been paid in full, Borrowers shall have deposited such amount with Lender for deposit into the applicable Reserve Fund(s) to be held and disbursed by Lender as set forth in Article VII hereof); and (x) there shall exist no Shortfall as of the Business Day immediately preceding the first (1st) day of the Third Qualified Extension Term; provided, however, that this condition shall be of no further force or effect after the date on which Final Completion is achieved.